
'CTF/^ 



COUNTIES OF NEW YORK STATE 



Name 



Albany 

Allegany. . . . 

Broome 

! Cattaraugus^ 

' Cayuga 

'< Chautauqua.. 

' Chemung 

' Chenango. .. 

' Clinton 

: Columbia . .. 
' Cortland 

Delaware 

Dutchess. . . . 

Erie. ^ 

Essex. .. . 

P'ranklin. . . . 

Fulton 

! Genesee 

Greene 

' Hamilton . . . 

Herkimer . . . 

Jefferson.. .. 

I Kings 

55 Lewis 

26 Livingston . . 

4o Madison 

•t1 ^Monroe 

42 Montgom'ry* 

2 Nassau — ". . 
fi New York. . . 

49 Niagara 

44 Oneida 

46 Onondaga 

27 Ontario^ 

9 Orange 

•''0 Orleans 

•^3| Oswego 

34 Otsego.; .. .. 
lu Putnam 

3 Queens 

38 Rensselaer .. 

5 Eichmond.. . 

« Rockland. .. 

61 St. Lawrence 

40 i Saratoga 

36j Schenectady. 

35 Schoharie. '. . 
30 Schuyler 



Seneca 

Steuben.. . 
Suffolk.... 
Sullivan. . 

Tioga 

Tompkins 
Ulster 



1806 
1808 
1799 
1808 
1836 
1798 
1788 
1786 
1808 
1797 
1683 
1821 
17991 
1808 
1838 
1802 
1800 
1816 
1791 
1805 
1683 
1805 
1821 
'806 
1821 
1772 
1898 
1683 
1808 
i798 
1794 
1789 
1683 
1824 
1816 
1791 
18121 
1683 1 
1791 



Formed from what 



Original 

Genesee 

Tioga 

Genesee 

Onondaga 

Genesee 

Tioga 

Herkimer and Tioga. 

Washington 

Albany.'. 

Onondaga 



Ulster and Otsego 

Original 

Niagara 

Clinton 

Clinton 

^Montgomery 

Ontario ~. 

Albany and Ulster 

Montgomer}- 

Montgomery 

Oneida 

Original 

Oneida 

Genesee and Ontario.. 

Chenango 

Genesee and Ontario.. 

Albany 

Queens 

Original 

Genesee 

Herkimer 

Herkimer 

Montgomerj- 

Original 

Genesee 

Oneida and Onondaga. 

Montgomery 

Dutchess. .'. 

Original 

.\lbany 



Warren 

Washingtont 

Wayne 

Westchester. 
Wyoming. . . . 
Yates 



1683 Original 

1798 Orange 

1802 Clinton, Montgomery 
I and Herkimer. ... . 

179liAlbanv 

1809! Albany. 

17951 Albany and Otsego 

1854;Steube'n, Chemung, 

and Tompkins 

1804'Cavuga 

1796'Ontario , 

1683 Original 

1809|Ulster 

1791 ^Nlontgomer}^ 

|1817jCavuga and"^ Seneca. ., 
1683 Original 

1813: Washington 

1772; Albany. 

1823; Ontario and Seneca.., 

1683|Original 

1841 Genesee 

1823lOntario 



Origin of name 



Duke of York 

Allegany river 

John Broome 

Indian name . 

Indian tribe 

Indian name 

Chemung river 

Chenango river 

George Clinton 

Columbus 

Pierre VanCortlandt 

Delaware river 

Duchess of York — 

Lake Erie 

County of England. . 
Benjamin Franklin. 

Robert Fulton 

Genesee river 

Nathaniel Greene. . . 
Alexander Hamilton 
Nicholas Herkimer. . 
Thomas Jefferson. . . 

King Charles II 

Morgan Lewis 

Robert R. Livingston 

James Madison 

James Monroe 

Richd Montgomery. 
William of Nassau.. 

Duke of York 

Niagara river 

Indian tribe 

Indian tribe 

Lake Ontario 

Son of Duke of York 



City of Oswego 

Indian name 

Israel Putnam 

Wife of Charles II.. 
Van Rensselaer fam- 

ilv 

Son of Charles II — 

Descriptive- 

St. Lawrence river.. 



Indian name. .. 
Indian name — 
Indian name — 
Philip Schuyler. 



Indian tribe 

Baron Steuben 

County of England. 

John Sullivan 

Indian name 

Daniel D. Tompkins. 
Irish r^arldom of 
Duke of York. .. 

Joseph Warren 

George Washington. 

Anthony Wayne 

Town of Westchester 

Joseph C. Yates 



County Seat 



Albany 

Belmont 

Binghamton 

Little Valley , . . . . 

Auburn 

Mayville 

Elmira 

Norwich 

Plattsburgh 

Hudson 

Cortland 

Delhi 

Poughkeepsie. ... 

Buffalo 

Elizabethtown ..! 

Malone 

Johnstown 

Batavia 

Catskill 

Sageville 

Herkimer 

Watertown 

Brooklyn 

Lowville 

Genesee 

Morrisville 

Rochester 

Fonda 

:Mineola 



Lockport 

Utica 

Syracuse 

Canandaigua 

Goshen, Newburgb 

Albion 

Pulaski, Oswego.. 

Cooperstown 

Carmel 

.Jamaica 

Trov 



Richmond. . 
Clarkstown. 
Canton 



Ballston Spa. 
Schenectady. . 
Schoharie. . .. 
Watkins: 



Ovid, Waterloo. 

Bath 

Riverhead 

Monticello 

Owego 

Ithaca 

Kingston 



Caldwell 

Argyle 

Lyons 

White Plains . 

Warsaw 

Penn Yan 



Popula- 
tion, 
1900 



165.571 
41,501 
69,149 
65.643 
66.234 
88,314 
54,06a 
36,563 
47,43a 
43,211 
27,576 
46.413 
81,670 

433,686 
30,707 
42.853 
42,842 
84,561 
81.478 
4,947 
51,049 



1,166,582 

27,427 

87.059 

40,.545 

217,8.54 

47.488 

55.448 

2.050.600" 

74,961 

132,800 

168,735 

49,605 

108,859 

30,164 

70.881 

48;939 

13,787 

152,999 

121,697 

67,021 
38,298 
89,083 

61,089 
46,852 
26.854 
15,811 

28,114 
82.822 
77.582 
82,306 
27.951 
33,830 
88,422 

29,948 
45,624 
48.660 
183.375 
30,413 
20,318 



* Changed from Tryon, 1784. 



t Changed from Charlotte, 1785. 



Total. 7,268.012 




PRESIDE^'T THEODORE ROOSEVELT 



A 



MANUAL OF CIVICS 



FOR 



NEW YORK SCHOOLS 



C. W. BARDEEN 



EDITOR OF THE SCHOOL BULLETIN « 




SYRACUSE, N. Y. 

C. W. BARDEEN, PUBLISHEK 
1902 



Copyright, 1901. by C. W. Bardeen 



THE LIBRARY OF 

eONGfTESS, 
Two OortEs Receiveb 

JAN. 16 1902 

Co»»VI?IOHT ENTRY 

CLASS ^XXo. Wo. 

COPY a j 



^\f^ 



^ 



2.^ 



REFERENCES 

Heavy faced numbers in parentheses, like (210), refer to con- 
secutively numbered paragraphs of the national.and state consti- 
tutions, pages 612 to 676. 

Numbers separated hj colon from a date refer to chapters of 
the state laws of that year; thus 521:1901 is chapter 521 of the 
laws passed by the New York legislature of 1901. 

B with roman and Arabic numerals refers to the second edition 
of Bryce's American Commonwealth: thus B ii. 612 refers to page 
612 of the 2d volume. 

Prentice stands for Prentice's History of New York; Hadley. 
for Hadlev's Education of the American Citizen. 



(iv) 



PEEFACE 

It is now a quarter of a century since I first 
published Northam's Civil Government, the 
early editions of which bore upon the title-page 
the words " for common schools ", the distinc- 
tion of the book. Civil government had been 
hitherto a high school study, ranked in common 
estimation in the group with logic and mental 
and moral philosophy. The book was a great as- 
sistance to the movement that began about that 
time to introduce the subject lower down, espe- 
cially in the 8th and 9th grades. The success of 
the book may be judged from the fact that it has 
passed through 177 editions, and that only last 
October 1,150 copies were ordered for a single 
institution, the New York City Normal college. 

As a presentation of the facts of civil govern- 
ment that book has never had a rival. But 
there has recently developed, especially in regents 
schools, a demand for more of the history and 
the philosophy of civics. In deference to that 
demand this book has been written, and is 
believed to present all the valuable features of 
its predecessor, with an adequate response to the 
requirement for broader treatment. The regents 

(V) 



vi bardeen's civics 

syllabus has been followed directly ; and to make 
sure that the book covered all the topics now 
taught in New York schools under the name of 
civics, all the regents questions in civics for the 
ten years 1891-1901 have been published in a 
separate volume, with references by page to this 
book. All questions in the uniform and the 
state examinations from the beginning not cov- 
ered by these regents questions have been added, 
and it may be said with confidence that this book 
traverses the entire ground indicated by these 
questions. 

The advantage of historical treatment is not 
likely to be overestimated-. It presents frequent 
opportunities for comparison, always one of the 
most effective phases of teaching, and suggests 
frequent contrast of our condition with that of 
our forefathers, which leads to an appreciation 
of pur privileges, and a sense of our duties. So 
closely related is civics with history and with 
political economy that it is often difficult to 
know where to draw the line in teaching. Many 
topics are here suggested which it would be im- 
possible to dwell upon, in the effort throughout 
to encourage reflection and discussion. 

In mechanical structure the book has an open 
page, and is indexed so fully by headlines that 
one may turn in an instant to any part he wants 
to find. A marked feature is the thousands of 



PREFACE Vll 

cross-references. I have aimed not only to make 
it easy for the student to look these up, but to 
compel him to do so, that his information may be 
welded together, instead of lying in his memory 
as isolated facts pigeonholed without connection. 
Teachers will appreciate the etymological refer- 
ences which are given in connection with most 
of the leading terms. These are made a means, 
not an end, and have been omitted where not 
likely to be helpful ; it is, for instance, of little 
use to the pupil to know that reciprocity comes 
from reciprocus, of unknown origin. But where 
the etymology is given it will be found a help to 
understanding and fixing the words. 

The references to Bryce's American Common- 
wealth^^ are frequent for three reasons : (1) be- 
cause it is a book found in most school libraries ; 
(2) because it is the most comprehensive view of 
American institutions that has appeared ; (3) be- 
cause the quotations give opportunity to point 
out that a good many features in which he 
found our institutions defective have been reme- 
died in New York, especially the conditions sur- 
rounding the primary meeting and the ballot. 

There is no pessimism in this book. I believe 
in our national government, and in the constitu- 
tion and laws of New York, and I have endeav- 



* 2d edition : indicated throughout the book by B, with number of the 
volume and page. 



VUl 

ored to make pupils who use this book beheve in 
them. It is not a time to despair of the repubhc 
when Seth Low is mayor of New York, Ben- 
jamin B. Odell governor of the state, and Theo- 
dore Roosevelt president of the United States. 

Aristotle calls man '' a political animal ". 
This book is an attempt to make New York boys 
and girls intelligent political animals. I have 
had in mind this statement of President Had- 
ley 's, from whose book I have quoted frequently : 

'' Among the many demands which are made 
upon our schools and colleges at the present day, 
none is more universally voiced than the demand 
for a fuller course of political education. And 
for this there is good reason. With the grow- 
ing complexity of modern life, the difficulties of 
social organization and government are increas- 
ing. With the growing pressure toward spe- 
cialized training for varied spheres of usefulness, 
the danger that we shall sacrifice the general 
basis of higher education which will enable 
us to cope with these difficulties is also increas- 
ing. It is not enough for our schools to fit men 
and women to be parts of a vast social machine ; 
it must prepare them to be citizens of a free 
commonwealth. If our educational system fails 
to do this, it fails of its fundamental object."^ 



Hadley, " Tlie Education of the American Citizen." page 185. 



TOPICAL ANALYSIS 

I. Introduction 15 

kinds of government 15 

practical value of civics 18 

II. The town 22 

history — tun, mark, clan, tribe 22 

in New England, in New York 25 

the town-meeting t6 

source and school of democracy ! -. . . . 27 

III. Powers of the town 28 

legislative, by-laws, local taxes 28 

judicial, justice's court 29' 

executive, town-meetings 30 

IV. The town officers 34 

many years day fees bo?ids 

supervisor*! 1 2 $2, $4 -|- + . . 34 

town clerk*t 1 2 2 + . . 35 

justices*! 4 4 2 -f- _}_ . , 35 

constables 1-5 2 _^ _|_ . , 37 

assessors^ 3 2 2 -j- 0..38 

collector 1 2 -|- _}_ • . 39 

overseer qf poor 1 or 2 2 2 () - -|- . . 40 

liigliway com'r:{: lor 3 2 2 + . . 41 

pound master. 1 1 -|- . . 43 

auditors 3 2 -[- . . 43 

town board* 2 . . 43 

board of healthff 2 . . 45 

fence vieM'ers:}: 1.50 . . 46 

V. Subdivisions of the town 48 

election districts, officers 48 

highway districts, pathmasters 49 

school districts, meetings 51 

(1) 



Z TOPICAL ANALYSIS 

hew per 

many years day fees bonch 

trustee lor 3 lor 3 " .. 55 

clerk 1 1 . . 56 

collector 1 1 + + . . 56 

treasurer^ 1 1 + + . . 57 

librariani 1 1 . . 57 

union free school 57 

VI. The county 59 

history, the hundred, the shire 59 

representative government 62 

board of supervisors 64 

VII. Cothstty civil officers ' 66 

(For supervisors see town officers, page 34.) 

sherife 1 3 "- -^ + . . 66 

clerk 1 3 

treasurer 1 3 

sup't of poor 1 or 3 3 

engineer? 1 3 

side-path com'rs^ 5 or 7 5 . . 71 

notaryi ? 2 + . . 73 

school com'r 1-4 3 $1,200 . . 73 

loan commissioner^ ... 2 -|- -|- . . 74 

VIII. The corxTY court 76 



+ .. 68 

-4- + •• 69 

4- .. 70 

..70 



jvidge 1 6 to 

110,000 
$1,500 

surrogate 1 6 to . . 77 

$10,000 

district attorney 1 3 ? . . 79 

grand jury i . . '. 16-23 1 . . 81 

trial juryi 12 1 . . 83 

com'r of jurors^ 1 . . 83 

IX. The villaCxE 87 

incorporation, 4 classes 87 

president 1 1 1 . . 90 

trustees 2-8 2 ? . . 90 

assessors? 3 3 ? -|- . . 91 

collector? 1 1 ? -|- -j. . . 91 



1 Appointive. All other ofiRcers named are elected. 



COUNTY, VILLAGE, CITY 6 

hoiv per 

many years day fees bonds 

police justice 1 4 ? ? . . 92 



clerk^ 1 

engineer^ ?. 1 

street commissioner^.. 1 

policeman^ 1 

board of healtli^ 1 

board of education ... 1 

inspectors of election? 4-}- 



? ? .. 92 

? .. 92 

.. 92 

? ? .. 92 

.. 9S 

? .. 93 

? .. 93 

comparison with town and city 94 

X. The city 96 

history, borough, city, guilds 96 

3 classes, officers* 101 

XI. The Greater New York 110 

the 5 boroughs 110' 

aldermen 73 2 $1,000 ..111 

president 1 2 5,000 . .111 

clerki 1 6 7,000 ..111 

mayor 1 2 15,000 . . 112 

comptroller 1 2 15,000 . . 112 

chamberlain 1 2 12,000 ..112 

sup't of schools! 1 6 8,000 . . 112 

board of education^ . . 46 5 ..113 

district boards^ 46 . . 113 

board of examiners^ . . 4 4 5,000 ..113 

president of borough . 4 2 7'5O0 ..114 

city court judges 7 10 10,000 ..114 

court of ses., recorder 1 14 10,000 ..114 

city judge 1 14 10,000 . . 114 

justices 3 14 10,000 . . 114 

special sessions judges 10 10 o'ooo ..115 

15 6 6,000 

magistrates* 12^ 10 6,000 ..115 

7,000 

municipal courts 23 10 ^'S?? ..115 



6,000 



*There is so much vuriation in cities that tabulation would be indefinite. 



4 TOPICAL ANALYSIS 

XII. The STATE 118 

history of constitution . . 119 

Magna cliarta 120 

petition of right, bill of rights; 121 

English constitution 123 

charters, written constitutions 125 

2 principles of American government, 129 

constitution vs. laws 132 

4 constitutions of New York 133 

XIII. The bill of rights 136 

rights, natural, personal, civil, political 136 

personal rights 137 

securitj' 137 

habeas corpus 137 

searches and seizures 138 

ex post facto laws 139 

bills of attainder 140 

corruption of blood 140 

trial by jury 141 

excessive bail and fines 141 

' counsel and witnesses 141 

liberty 143 

free speech and press, slander, libel 144 

religious liberty, marriage, divoi'ce 145 

property rights 147 

feudal sj'stem 147 

alienation, quarter sales, allodial lands 148 

eminent domain ^ 150 

personal property, contracts 151 

political rights 152 

XIV. The electiae franchise 154 

qualifications of electors 154 

woman suffrage, age 154 

citizenship, naturalization 155 

. ' . residence, registration 158 

lunatics, paupers, poll tax 159 

bribery, betting on election 160 

educational qualifications 161 

majority, plurality 162 



STATE 



XV. Elections 164 

general election . . 165 

manners of voting 165 

xVustralian ballot, voting machines 167 

nominations 171 

conduct of elections 172 

XVI. PRniAKY MEETINGS 176 

history of the caucus 176 

New York system 177 

political , parties 180 

politicians, bosses, heelers. . '. 

the citizen's duty 



XVII. 



9 



salary 
$10,000 



184 

186 

. . 189 

191 

192 

militia 198 

2 5.000 ..198 
200 



The (4()vekn()r 

powers 

appointments 

extradition, pardons, 
lieutentant-governor. . 

XVIII. State administrative officers 

elected hoivf/ianij years 

secretary of state 

comptroller. 

treasurer.. 

attorney general 

engineer 

sup't of public instruction*. 

appolntetl 
superintendent of insurance, 
superintendent of banking. . 

sup't of public works 

state architect 

excise commissioner 

superintendent of prisons. . . 

commissioner of labor 

agricultural commissioner . . . 

commissioner of health 

health officer 



salary 
$5,000. . 

6,000. . 

5,000. . 

5,000. . 

5,000. . 

5,000. . 



.200 
.200 
.201 
.201 
.201 
201 



7,000. . 
7,000 . 
6,000. . 
7,500. . 
6,800t. 
6,000. . 
3,500. . 
4,500. . 
3,500. . 
12,500. . 



.202 
202 
202 
.202 
.203 
.203 
.204 
.204 
.205 
.205 



Elected by joint ballot. + Including allowance for expenses. 



TOPICAL ANALYSIS 



XIX 



court of claims 

board of charities 

prison commission 

railway commissioners 

tax commissioners 

quarantine commissioners . 

assessors 

lunacy commission 

civil service commission. . . 

forest commission 

forest preserve board 

ex-officio boards 

canvassers 

canal fund 

canal board 

land office 

classification , 

equalization 

public buildings 

superintendent^ 



how many 
5 
12 
3 
3 
3 
3 
3 
3 
3 

3 

5 

6 

7 
^ 7 
4 
5 
3 
1 



years 
6 
8 
4 
o 
3 
3 
3 



4 



salary 
5,000. . 
none. . 
2,500^. 
8,000. . 
3,000f. 
2,500. . 
2,500. . 
6,200+. 
3,000. . 
5,000 
none 



.206 

.20& 

.206 

.207 

.207 

.207 

.208 

.208 

. . .209 

...210 

. . .210 



5,000 



. . .210 
. . .211 
...211 
...211 
. . .211 
. . .212 
...212 
...212 



XX. 



XXI. 



salaries of clerks. . t 218- 

History of New York legislature 214 

council of twelve, 1641 214 

eight men, 1648; nine men, 1647 215 

land-tag, 1664 .21& 

first general assembly-, 16^8 217 

first royal assembly, 1691 218 

committee of sixty, 1775 a 219 

provincial congress, 1775 . 219 

The legislature as a whole 220 

first session, 1777 220 

comparison with parliament 221 

bicameral system 228 

The two houses separately 227 

how many years salary 
assembly 150 1 |1,500 227 

President only. *** See page 210. 



STATE / 

organization and officers 227 

how many years salary 

senate 50 2 $1,500 230 

powers of the senate 230 

XXII. Law-making powers 232 

limitation by constitution, referendum 232 

limitations as to scope 234 

as to manner 236 

quorum 237 

XXIII. How LAWS ARE MADE 238 

introduction of bills 238 

three readings 238 

obstructive debate 239 

committee of the whole 240 

concurrence of both houses 241 

veto, appropriation bills 241 

checks against majority rule 243 

XXIV. Legislation by committees 245 

dangers of committee system. . . , 248 

lobbjing. log-rolling 249 

XXV. Courts op law 252 

common vs. statute law 253 

civil vs. criminal law 256 

2 functions of courts 257 

history of judiciary 257 

attorneys and counsellors 259 

judges, appointed or elected 261 

XXVI. The st'ate courts 263 

justice's court 30 

county court 76 

supreme court 263 

justices 76 14 $6,000-$14,000. . . .263 

proceedure of civil suit 264 

of criminal suit, 267 

special term, government by injunction 269 

appellate division 271 

court of appeals 273 

judges 7 14 $12,000tt....273 



8 TOPICAL ANALYSIS 

XY VII. United States couktjs 27.") 

supreme court 275 

necessity and jurisdiction 275 

district courts 278 

relation to state courts 278 

circuit courts 280 

circuit court of appeals. 280 

court of claims 231 

territories, District of Columbia 281 

judges, all having life tenure 282 

hoxv mainj salary 

supreme 9 $10,000^ ... .227 

appeals 6,000 ....280 

circuit 25 6,000 .... 280 

district 74 5,000 ....278 

territory 3,00!) 281 

District of Col. . . . 6 5,000 ... .282 

appeals 3 6,000^ ....282 

claims 5 4,500 281 

XXXVIII. Constitutionality of statutes 286 

not questioned in England 288 

interference of congress 289 

comparison of courts '. 291 

XXIX. Taxation 292 

indirect taxes 294 

the Raines law 295 

excises, internal revenue 296 

revenue or protective tariff 297 

direct taxes '. 298 

assessment, personal propert}'. 300 

XXX. The common schools 304 

necessity of education 304 

liistor}' of education in Xew Y^ork 305 

free schools, 1867 306 

compulsory education, 1894 306 

supervision 307 

state superintendent '. . .309 



X Chief judge $500 more. 



NATION 9 

funds, appropriations 310 

training of teachers 313 

, charitable and penal institutions 314 

XXXI. Academies and colleges 318 

regents of the University 318 

literature fund 319 

examinations 320 

union free schools 321 

Cornell university 323 

XXXII. The confederation 324 

previous experiments. 324 

United colonies of New England, 1(543 324 

Albany convention, 1754 325 

stamp-act congress, 1765 , 325 

1st continental congress, 1774 326 

2d continental congress, 1775 327 

comparison of two declarations 327 

articles of confederation 330 

XXXIII. The national constitution 332 

weakness of the confederation 332 

adoption of constitution .... 332 

modelled on state constitutions 333 

compared with that of England 334 

2 points of difficult}', the solution 336 

works through national officers 337 

the United States us 338 

source of authority, amendments 338 

XXXIV. Relation of the nation to the states 342 

exclusive national powers 342 

exclusive state powers 343 

coordinate powers 344 

powers forbidden to both 344 

forbidden to nation 344 

forbidden to states 347 

except with consent of congress 347 

guarantees to each state 349 

comparison with articles of confederation 350 

the nation gaining in power 353 



10 TOPICAL ANALYSIS 

XXXV. Territories and new states 855 

ordinance of 1787 ^ 355 

acquisitions of territor}^ 356 

homestead laws 356 

political status of a territory 358 

admission as a state "359 

can it withdraw ? 360 

District of Columbia 360 

years salary 

XXXVI. The president 4 $,50,000 362 

electoral college 363 

national convention 368 

succession in case of death 370 

qualifications and salary 371 

XXXVII. Powers of the president 373 

legislative, the veto : 373 

judicial, the pardon 374 

executive 374 

relation to congress 375 

sometimes exceeded 378 

comparison with governor 379 

with king of England 380 

vice-president 4 $8,000 380 

XXXVIII. Civil service reform 382 

appointing power of president 382 

history of civil service reform 383 

laws of 1853 and of 1883 387 

hoiv nuiny yrs. salary 
civil service commissioners, U. S.. 3 ? $3,500,388 

New York 3 ? 3,000.209- 

XXXIX. The president's CABINET.. 8 ? 8,000.390 
comparison with New York 390 

with English ministry 392 

XL. State, avar, navy, post-office departments 396 

state department 396 

attornej^ general's office 396 

war department 397 

armv and militia 897 



NATION 11 

navy department. 400 

post-office department 401 

XLI. Treasury department 405 

uniform weights and measures 406 

coinage of money 406 

gold and silver 409 

borrowing money, greenbacks 413 

national banks 415 

regulating commerce 418 

DEPARTirENT OF AGRICULTURE 421 

XLII. Department of the interior 421 

Indian affairs 431 

land office, pensions, census 422 

patents, copyrights 423 

bureau of education 425 

national library 426 

Smithsonian institute 426 

XLIII. Congress 428 

comparison with parliament 429 

with legislature 430 

long and short sessions 432 

membership, quorum 432 

officers, rules, privileges 434 

process of law-making 437 

power of committees 438 

classified powers 442 

how many years salary 

XLiy. House OF REPRESENTATIVES 368 2 $5,000. .445 

apportionment, qualifications 445 

requirement of residence 447 

speaker 1 2 $8,000.. 451 

XLY. United States SENATE 50 6 $5,000. .453 

principal compromise of the constitution 453 

purposes, method of election, officers 453 

executive powers 457 

judicial power, impeachment 458 

legislative powers 460 

XLYI. International law 462 



12 TOPICAL ANALYSIS 

ambassadors, ministers, consuls.. 464 

treaties of intercourse 467 

declaration of war 468 

non-combatants 470 

neutral nations. 472 

treaties of peace 474 

XLVII. Principles of GovERisr.MBNT 476 

theories of government 476 

monarchy, absolute, limited 477 

democracj^ republic 481 

8 departments \ 482 

centralized or local 483 

the federal principle 484 

the laissez-faire theory 491 

XLVII. Persoxal rights 492 

security, liberty 492 

parents and guardians 498 

master and servant 495 

duties of the citizen 495 

obedience 495 

public service 496 

public spirit 497 

military service 498 

duty of revolution 499 

omnipotence of public opinion 499 

XLIX. Property rights 507 

conditions of wealth 510 

theories of socialists '..... 512 

capital, interest, usury .• 512 

monopolists, trusts 514 

contracts, 5 conditions 517 

marriage, bigamy 521 

insurance 522 

damages f or • non-f ultilment 523 

bankrupt laws 524 

negotiable paper 526 

real estate titles 531 

leases, appurtenances 531 



PRINCIPLES OF GOVERNMENT 13 

deeds, mortgages 534 

personal property 539 

wills, conditions, codicils 540 

L. Crimes and punishments • 544 

felonies and misdemeanors 545 

perjurj^ treason, anarchy 546 

bribery, extortion, embracery 548 

suicide, murder, assault 550 

larceny, robbery, burglarj^ piracy 552 

arson, forgery, counterfeiting 553 

accessories, attempts, extradition 553 

Comparative chart of GO\nERNMENTS 556 

Tables and maps 558 

Declaration of independence 591 

Articles of confederation 595 

Ordinance of 1787 604 

Constitution of the United States .612 

Constitution of New York 630 



BARDEEN'S CIVICS 



CHAPTEE I 

INTRODUCTION 

The man who steered a Koman ship was called 
the gubernator, and from that word we get our 
English word government, the steering of con- 
duct so as to reach the desired ends of living. 
As the wise pilot varies the course as httle as 
possible, so a wise government interferes only 
when necessary ; but as a ship without a rudder 
drifts to ruin, so mankind without government 
would go to destruction. 

There are many kinds of government. Man 
must be self-goyerned ; the man with an ungov- 
ernable temper is unhappy and dangerous. 

Till he arrives at maturity he is subject to 
family government ; the child is learning by ex- 
perience what is wise or unwise in conduct, but 
the world can not wait for him to try all the 
experiments — he must by obedience to his par- 
ents get and give the advantage of the accumu- 
lated experience in conduct of many generations. 

When he goes to school he becomes subject to 
school government. He learns that he must be 

(15) 



16 INTRODUCTION 

regular and punctual in attendance, prepare the 
lessons assigned, study quietly, follow promptly 
the signals for concerted action ; in short that he 
must obey the teacher, even if he does not al- 
ways see why. 

At recess, too, he finds a system of playground 
government. The games are played by rules 
which he must learn and follow, or he will not 
be allowed to play. He must yield to the direc- 
tion of the captain of the nine, and obey the 
decision of the umpire. He must not be greedy 
or he will be despised ; he must not be boastful 
or he will be laughed at ; he must not cheat or 
he will be shunned. He finds himself surrounded 
by more or less definite rules of conduct, insti- 
tuted by the boys themselves but recognized as 
binding. 

Before he is very old he learns that he and his 
playmates and his teachers and his parents are 
all under a pervasive system of government. 
He sees policemen with authority to forbid cer- 
tain acts, and to arrest and lock up people. He 
finds that everybody who owns a house pays 
taxes on it, and as it is often done grumblingly 
he knows some authority compels the payment. 
He hears now and then of elections and of offi- 
cers, and is told that such a man is a judge, that 
such a man is supervisor, that such a man is 
sheriff. He hears a good deal about the law, 



KINDS OF GOVERNMENT 17 

and what is done to those who violate it. So he 
comes to reahze that when he no longer feels 
parental and school and playground authority, 
he will s bill be under a similar but much more 
extensive authority, which he learns to call civil 
government, or the government of the people as 
a community (so called from the Latin word 
civis, the state) ; and he will naturally be inter- 
ested in civics, orl^he science of civil government. 
He has studied the rules of base-ball, so as to 
know how to play correctly. He will want to 
study civics, so as to know how to exercise his 
duties as a citizen. 

His experience at home and in school and on 
the playground has taught him the advantages 
of governmeut. He knows that boys never 
accomplish much in a body unless they have a 
recognized leader, and he will see that men too 
must need leaders. Single persons could not 
build bridges or school-houses, or maintain a 
post-office system, and there must be some one to 
direct, with authority to compel. 

He knows that people have selfish instincts 
which only authority will restrain; that the 
httle would be at the mercy of the big, the weak 
at the mercy of the strong, the quiet and indus- 
trious at the mercy of the noisy and the lawless, 
unless there were in the community a sense of 
justice and a power to enforce it. 



IS INTRODUCTION 

He knows that when people are together each 
must do his share of whatever is for the com- 
mon good ; each must respect the rights of others, 
and if he is unwilling to do so must be com- 
pelled to. 

But who shall direct ? who shall do this com- 
pelling ? He knows how leaders among boys are 
chosen, and he will naturally want to know if 
leaders among men, these directors and compel- 
lers, are chosen in the same way. 

He is ready to recognize the advantages of 
civil government if it is wisely framed and hon- 
estly administered ; and he should feel the same 
interest in learning about it that he feels in dis- 
cussing the rules of base-ball or the management 
of the captain of the track-team. 

That is what this book is to teach him. Of 
all the knowledge he gets in school, none is of 
more practical value than this. As a boy he 
may or may not belong to a ballrclub, but when 
he becomes 21 years old he will certainly be a 
citizen, with as much right and as much duty 
as any other citizen to help form and direct and 
maintain the civil government under which 'he 
lives. He knows that boys accomplish things by 
a long pull, a strong pull, and a pull all to- 
gether. He will be right in thinking that men 
accomplish things in the same way, and that 
a knowledge of civics will help them do it. 



IMPORTANCE OF CIVIL GOVERNMENT 19 

But how about the girls ? Are they also in- 
terested in civics? A century ago this would 
have seemed unlikely, for in those days a girl's 
education was based on ' ' accomplishments ' ' — 
music, dancing, '' polite conversation", and per- 
haps a little French, the object being to make 
her attractive to men. But in these days the 
education of girls is becoming as broad as that 
of boys, and most of the same paths of useful- 
ness are open to them. • Men no longer find it 
necessary to adapt their conversation to women, 
but talk with them upon all the current topics of 
the day, expecting to find them intelligent and 
well-informed. In many places women have 
taken the lead in movements for civic reform, 
and the potency of their influence is recognized 
wherever such reforms are undertaken. 

Moreover the discrimination of sex is disap- 
pearing in civil government. In some states 
women have the same rights as men to vote and 
hold office. ^ In New York they have these same 
rights in school elections ; and the legislature of 
1901 gave to women who are property owners 
the right to vote upon propositions to raise 
money. Women have then the more reason 
to know about civil government because as 
they begin to exercise these rights the public 
will be watchful to see whether they do so in- 
telligently. 



20 INTRODUCTION 

It is a capital idea occasionally to turn the civ- 
ics class into a debating-club. There are many 
questions that are not yet decided, usage differ- 
ing in different states: as for instance whether 
the local managemeEt of schools should be by 
district or by township ; whether judges should 
be appointed or elected; whether the right to 
vote should depend upon sex or education or 
property, etc. Even principles pretty well set- 
tled, as that a republican form of governmeDt is 
preferable to a monarchy, may be more firmly 
fixed by a debate in which all that can be said 
in opposition is brought forward and refuted. 
Frequently there are local questions under dis- 
cussion by the parents, as whether a new school- 
house shall be built, that may be profitably dis- 
cussed in the class. 

Such discussion should always be fair and 
candid, the object being not to triumph in debate 
but to contribute toward the true solution of 
the problem. The rules of debate should be fol- 
lowed, and the class should have access to Gore's 
' ' Manual of Parliamentary Practice ' ' or some 
similar work. The most important rules arc 
these : 

1. There must be a chairman, whose rulings 
are to be promptly obeyed. 

2. No one may speak until he has arisen, ad- 



DEBATING CLUBS 21 

dressed the chairman, and been recognized by 
name. 

3. The one thus recognized "has the floor"; 
that is he must be allowed to speak without in- 
terruption so long as he uses proper language, 
confines himself to the question, and does not 
exceed the time limit, if there be one. 

A debating club may be formed outside the 
class, and if well managed is likely to prove of 
great value to its members. It is said that 
nearly all the men who have had powerful influ- 
ence as English statesmen were trained in the 
debating clubs of Oxford and Cambridge. 

It might be well to turn the school for an hour 
or two into a school meeting (see page 54). The 
forms will be found in the code of Public In- 
struction (1887 ed., pp. 180-195). The pupils 
will elect a chairman and clerk, trustees, and col- 
lector, and consider the powers named oh page 
54. A town-meeting (see page 31) or a mock 
court (see page 263) may be held in like manner. 
Pupils are advised to attend such meetings and 
become familiar with the actual proceedings. 



CHAPTEK II 

THE TOWN 

In most of the United States the unit of civil 
government is the town. 

In the case of schools or of roads the town is 
sometimes divided into districts (see page 48), 
but this is only for special purposes ; for general 
civil powers the town is the unit. 

The word town comes from the old English 
word tun, meaning the fence or stockade with 
which our German ancestors long before their 
invasion of England in A. D. 449 used to sur- 
round their groups of houses and the untiUed 
land or mark about them, for purposes of defence. 

The town of the low- Dutch tribes that settled 
in England was originally the stationary home 
of a clan (from clann, a Gaehc word meaning 
children, descendants), which grew up from a 
nucleus of one or more families wandering about 
together in search of food and united for aggres- 
sive or defensive warfare. This prevailed under 
different names among all uncivilized peoples; 
among the AmericaD Indians a group of clans 
was called a tribe (from Latin trihus, originally 
a third part of the people, afterward merely a 

(32) 



HISTORY 23 

division). It developed into a union of those 
who claimed a common ancestor, and prevailed 
especially in Scotland and Ireland. 

The prefixes Max (son of), and Ua or 0' (grand- 
son of) arose in this way. Thus MacCarthargh 
(McCarthy) was the son of Cartach ; Ua Concho- 
bair (O'Connor) was the grandson of Conchobair. 

''As they fought side by side on the field, so 
they dwelt side by side on the soil. Harling 
abode by Harling, and Billing by Billing, and 
each ' wick ' and ' ham ' and ' stead ' and ' ton ' 
took its name from the kinsmen who dwelt in it. 
In this way, th^ house or ' ham ' of the Billings 
was Billingham, and the town or township of the 
Harlings was Harlington. " i 

In this primitive Teutonic democracy, de- 
scribed by Tacitus as vicus and still prevailing in 
its essentials in the smaller cantons of Switzer- 
land, the lowest territorial unit was the hide 
(Anglo Saxon h'td) of land, estimated at 80 to 
120 acres, and supposed to be enough for the 
maintenance of a single family. The lowest 
political unit was the enlarged family, the gens 
of the Romans, tracing descent from a common 
forefather ; and its territory was called the town. 
The cultivated land was fenced in and formed 
the town proper. In other lands it was known as 
the Gemeinde (Germany), the commune (France), 

1 Green's Short History of the English People, 



24: THE TOWN 

or the mir (Eussia). It has always been the 
smallest political unit with its own assembly and 
its own organization. 

Two other names are often used for the town. 

Originally the towns as thus introduced in 
England were democracies, but during the long 
contests that followed the invasion, though the 
inhabitants still had some of their former privi- 
leges, they all became subject to lords, and the 
towns were regarded as estates. In this sense 
they were then called manors (from Latin manere, 
to remain, the permanent residence of the lord 
and his tenants). 

When England became a Christian country 
the church assumed many of the functions of 
government, especially taxation, and divided the 
country into parishes (from Greek pcira and 
oikos, beside the dwelling), usually retaining 
the geographical boundaries of the towns'; so 
the name town lost its original significance, and 
now usually means there what we call a city ; it 
is often applied as here to village or city life as 
distinguished from country life. (See page 97.) 
In like manner, since the abolition in England in 
1868 of compulsory church rates, the parish has 
ceased to be of importance there in local govern- 
ment. 1 

In New England the town was originally a 

lEnc. Brit, xviii, 296. 



HISTORY 25 

parish, practically a church congregation grouped 
about the " meeting house ", which served for 
civil as well as for rehgious assemblies. In some 
colonies only church members could vote. The 
size of the township was determined largely by 
the distances from which it was convenient to 
attend the central church, and when a new 
church was needed a new town was formed. 
Towns in Connecticut and the West were formed 
by congregations coming from Massachusetts, 
which made grants of land not to individuals 
but to groups of people who wanted to attend 
the same church. 

These towns were self- organized, self- governed, 
and had many features of the community proper, 
where everything is owned in common. Every 
town had its ''common", land open to all for 
pasturage ; and some towns had common wood- 
lands. 

In New York during the first 30 years under 
the Dutch there was little local government ; the 
local officers for such settlements as were formed 
on the Hudson and on Long Island were ap- 
pointed by the governor. In 1653 New Amster- 
dam was incorporated on the plan of Dutch 
towns, and some of the English towns on Long 
Island had organizations similar to those of New 
England. The town is now organized or its 
boundaries changed by the board of supervisors. 



26 THE TOWN 

Whenever the EngHsh colonists in America 
retained the forms of the Enghsh church, thej 
called the towns parishes, the name disappear- 
ing when the church and the government be- 
came distinct. In South Carolina this term was 
used up to the civil war, and it is still used in 
Louisiana. 

The word township is often used synonymously 
with town, but it refers more specifically to the 
territory covered by certain boundaries. Con- 
gressional townships, established by national sur- 
veys, are 6 miles sqilare, and may have limited gov- 
ernments of their'own, under provisions differing 
in different states. There may be within the town- 
ship a more elaborate town government distinct 
from that of the township. A form of township 
government has sometimes been maintained, as 
in New Haven till recently, and in Chicago till 
1901, long after the original town had been merged 
in a city, and it was impracticable to separate 
the interests of the town from those of the city. 

In the clan, in the tun, in the town and manor 
and parish, one feature has always been charac- 
teristic — the people have governed themselves 
directly and in the simplest way through formal 
meetings, where all had equal right to speak and 
to vote. This town meethig reahzes Abraham 
Lincoln's ideal of '^government of the people, 
by the people, and for the people ". 



POLITICAL IMPORTANCE 27 

The Greek ecclesia, held in the agora, and the 
Roman comitia, held in the forum, were some- 
thing like modern New England town meetings. 

The first American town meeting was held in 
Dorchester, Mass., in 1633, and it was agreed to 
hold such meetings monthly, determining all 
matters relating to the town by a majority vote. 

The influence of the town meeting was consid- 
ered so important by Jefferson that he said: 
' ' These wards, called townships in New England, 
are the vital principle of their governments, and 
have proved themselves the wisest invention ever 
devised by the wit of man for the perfect exer- 
cise of self-government and for its preservation. 
* ^ * W^e owe to them the vigor given to our 
Eevolution in its commencement in the Eastern 
states." 

Bryce says (i.591): "The town meeting has 
been not only the source but the school of democ- 
racy." But he remarks (i.567): "When, how- 
ever, the town meeting has grown to exceed 
seven or eight hundred persons, and still more 
when any considerable section are strangers, 
such as the Irish or French Canadians who have 
latterly poured into New England, the institu- 
tion works less perfectly, because the multitude 
is too large for debate, factions are likely to 
spring up, and the new immigrants, untrained in 
self-government, become the prey of wire-pullers 
or petty demagogues. ' ' 



CHAPTER III 

POWERS OF THE TOWN 

In law the powers of the town are pohtical 
and corporate. 

The town is a body politic (from Greek poUtes, 
a citizen), being, so far as pertain to the powers 
entrusted to it, the entire body exercising pohti- 
cal functions. 

. It is also a body corporate (from Latin corpor- 
are, to shape into a body); that is, in business 
matters it may act as a single person — may 
borrow money ; may buy, rent, and sell property 
for public uses ; may make contracts ; may sue 
and be sued ; etc. 

The three functions of government are (1) 
legislative (from Latin lex and lator, proposer of 
a law), law-making; (2) jiulicial (from Latin 
judex, judge) law-interpreting; and (3) executive 
(from Latin exsequi, to foUow to the end), law- 
enforcing. 

(1) Legislative Powers 

The legislative powers of the town are largely 
limited to passing by-laws (or town- laws, the 
Danish prefix meaning town, as in Derby) for the 

(28} 



POWERS OF THE TOWN 29 

regulation of local matters, so as to preserve 
peace, good order, and the public health. 

These regulations are subordinate to the laws 
of the state and of the nation. Thus in 1901 
the New York legislature passed a law restrain- 
ing local authorities from limiting the speed of 
automobiles to less than 8 miles per hour. 

The most important legislation committed to 
towns in New York is the power to determine 
whether Hcenses to sell hquor shall be granted. 
If the vote is for '' no license " the sale of hquor 
in the town except upon physician's certificate 
is unlawful. 

In New England the general levying of taxes 
is done by the town, but in New York and usu- 
ally elsewhere it is done by the county, the 
amount required by the State being seldom more 
than one-tenth of the amount raised. (See page 
299). Strictly local expenditure is however deter- 
mined by the town, and the tendency is to in- 
crease its poAyer% recent laws giving it power to 
provide water and sewer systems, etc. (See page 
45.) 

(2) Judicial Powers 

In the early days of the New England towns 
the judicial power was unlimited; the town of 
Plymouth executed one of its citizens for mur- 
der. But now the judicial power of the town is 

1481:1897. 



30 POWERS OF THE TOWN 

vested in the 4 justices of the peace, each of 
whom has power to hold a justice's court, where 
he hears and determines small cases, both civil 
and criminal. 

A justice may issue warrants (from old high 
German werm, to grant, hence something grant- 
ed) for the arrest of persons accused of crimes ; 
and summonses (from Latin sub, under, and 
monere, to warn) and subpoenas (from Latin sub, 
under, and j9oe?za, punishment) requiring persons 
to come to court to defend suits or to give testi- 
mony. He may try civil cases where the amount 
involved does not exceed ^200. While his crimi- 
nal jurisdiction is mainly over small offences, he 
sometimes examines persons charged with seri- 
ous crimes, and either acquits them or remands 
them for trial to a higher court (see page 77). 
(3) Executive Powers 

The powers of the town are mainly executive ; 
and as the voters of the town cannot get together 
every day to transact business, their principal 
duty at town meeting is to elect officers to do 
this executive work. 

In New York town meetings are held bien- 
nially in the odd years, on the second Tuesday of 
February ^ unless some other date is fixed by the 

^ In Erie county the time is the second -Tuesday of March. 
In counties having more than 130,000 the time is that of the 
general election (34, 174:1901) and the term of office of those 
elected begins on January 1 following. 



TOWN- MEETING 31 

board of supervisors, which must be between 
February 1 and May 1 (law of 1897), or at the 
time of the general election, the first Tuesday 
after the first Monday in November. 

Special town meetings may be called on peti- 
tion of 25 taxpayers, or by the town clerk. 

A town primary, or caucus (see page 176) is held 
by each of the principal political parties, and the 
nominations must be filed with the town clerk 
at least 15 and not more than 20 days before the 
town meeting. Vacancies arising may be filled 
by the party committee (see page 183), but must 
be filed at least 6 days before town meeting. 

The county clerk prepares the printed ballots 
containing all such nominations (see page 168). ^ 

The primary prepares a list containing the 
names of at least 2 persons qualified to serve as 
inspectors of election for each election district in 
the town, which list, duly certified, is filed with 
the town clerk, like the partv certificate of 
nomination. 

The Town Meeting 

The presiding officer is a justice of the peace 
(see page 36), and the clerk is the town clerk 
(see page 35). The election is conducted all day 
as described on page 166. The meeting is called 
to order at noon, and any voter may offer a pro- 

1174:1901. 



B2 POWERS OF THE TOWN 

position. All are at liberty to discuss it, and the 
vote is usually by aye and no^ (see page 165). 

Questions of expenditure must be introduced 
before 2 p. m., and if the amount is more than 
1500 it must be voted by ballot. ^ In such case 
the town clerk posts the proposition in conspicu- 
ous places at least 10 days before the meeting, 
and has printed ballots prepared both for and 
against. No town, county, village, or city may 
give or loan its property or credit to any individual, 
association, or corporation ; or become directly or 
indirectly owner of stocks or bonds in any asso- 
ciation or corporation; or incur any indebtedness 
except for town, county, village, or city pur- 
poses, including such provision for the aid or sup- 
port of its poor as may be authorized by law (250). 
For requirements as to voters see page 154:. 

Upon propositions to raise money only those 
are allowed to vote who own or whose wives own 
property assessed upon the last'preceeding assess- 
ment roll. 1 Women who own such property and 
have the other qualifications of voters except 
sex, are allowed to vote on such propositions. ^ 

The map on p. 486 shows how one of the coun- 
ties of the state is divided into towns. For table 
of the towns and cities of the state by counties, 
see p. 575. Turn to the map of the state on the 
inside of the first cover, and consider what would 

1 598:1901. 2509:1901. 



TOWN MEETING 3B 

be the effect if there were no units smaller than 
the 61 counties there showrt, and consider what 
modifications in the town meeting would be 
necessary to adapt it to so large a unit. 

For analysis of town government and tabulated 
list of officers see page 1. 



CHAPTER rV 

THE TOWN OFFICERS 

Town officers in New York are mostly elected 
for 2 years, except the justices of the peace, 
who are elected for 4 years. For salary and 
other details see table, page 1. They are as 
follows : 

The supervisor (from Latin super and vi- 
dere, to oversee) is the chief executive officer 
of the town (179). Besides (1) representing the 
town on the county board of supervisors (see 
page 64), and county board of canvassers (see 
page 173), and (2) being chairman of the town 
board (see page 43), he 

(3) receives the school money of the town and 
pays it out by order of the trustees ; 

(4) receives and pays out all money raised for 
defraying town charges, except that raised for the 
support of the poor (see page 40), and for high- 
ways and bridges (see page 41); 

(5) keeps a record in a book for that purpose 
of all money received and paid out, and delivers 
it to his successor ; 

(6) represents the town in all suits in which it 
is a party, and in other transactions. 

Cases as to disputed valuation of school prop- 

(84) 



supervisor; town clerk 35 

erty, where a district is partly in one town and 
partly in another, are adjusted by the supervis- 
ors of the two towns. 

For his duties in making up petit jury list see 
page 81. For his duties as to assessment roll see 
page 39. » 

The pay is for town work ^2.00 a day; and 
for county work $4. 00 a day, with 8 cents a mile 
for once going and returning from his residence 
to where the sessions are held. He also receives 
a percentage for paying out school money, and 
for copying the assessment roll (see page 39) 3 
ceats a hne for the first 100 written lines, 2 cents 
a hundred for the second 100, and 1 cent a line 
for aU in excess of 200. 

In counties having more than 130,000 and less 
than 150,000 the members of the board of super- 
visors receive an annual salary of 8250; with 
additional pay for such services as shall be a town 
charge, with mileage as above, and fees as above, 
and 1 cent for each line of the tax-roll actually 
extended by them. ^ 

The town clerk is the recording officer of the 
town. Besides (1) acting as recording clerk of 
town meeting (see page 31), (2) calling special 
town meetings (see page 31), he 

(3) has custody of all the records, books and 
papers of the town; 



34:1901. 



36 TOWN OFFICERS 

(4) files the papers, chattel mortgages, certi- 
ficates of oaths, and other papers required by 
law (see page 535), and certifies to them when 
required ; 

(5) reports to the board of supervisors all 
money voted by the to^vn since their last meet- 
ing; 

(6) notifies persons of their election to office; 
(T) reports to the county clerk immediately 

the name of any constable elected and qualify- 
ing; and ^vithin 20 days the names of all persons 
except inspectors of election elected at any town 
meeting, and whether they have qualified, and 
in the case of constables, reports to the county 
clerk immediately the names of any elected; 

(8) immediately notifies the county clerk when- 
ever a vacancy exists in the office of justice of 
the peace, with the date and the cause ; 

(9) keeps the record of births, deaths, and 
marriages in the town ; 

(10) delivers to his successor all books, papers, 
etc., belonging to the office. 

The pay is $2.00 a day for the time employed, 
with fees for recording and filing papers. 

There are 4 justices of the peace (223) whose 
duties as (1) judicial officers of the town have 
already been described (see page 29). They also 

(2) take acknowledgment of conveyances of 
property (see page 535); 



TOWN CLERK; CONSTABLES 37 

(3) administer oaths; and act as members of 
(4) the town board (see page 43), and (5) the 
board of health (see page 45). 

The term of office is 4 years, 2 being elected 
biennially. Their pay is mostly by fees, but 
they receive 12.00 a day when employed by the 
day. 

Before taking office they must qualify before 
the county clerk, and execute an undertaking 
with 2 sureties to pay over on demand to the 
person authorized to receive them all moneys 
received by them by virtue of their office. ^ 

They may be removed for cause (223). 

The constables (1) serve the warrants, sum- 
monses, and subpoenas issued by justices ; 

(2) arrest and have custody of persons accused 
of crime, and bring them before the justice for 
trial ; 

(3) collect money upon execution (see page 40), 
and if necessary sell property to satisfy the same ; 

(4) see thlat order is preserved in the com- 
munity ; 

(5) attend the higher courts »when so directed 
by the sheriff (see page 66). 

The number is determined by vote of town- 
meeting, but may not exceed 5. The pay is 
mostly by fees. In counties of more than 200,- 
000 and less than 300,000 the fees for summon- 

1398:1901. 



38 TOWN OFFICERS 

ing a jury in civil or criminal action is 13.00 
without mileage. ^ 

The word constable (from Latin comes com- 
panion, and stabulum, stable) meant in the mid- 
dle ages master of horse, and hence a high offi- 
cer in monarchical establishments. The consta- 
ble of France was the first officer of France, and 
had command of the army. The lord high con- 
stable of England was also commander of the 
army and keeper of the peace of the nation, 
with high judicial powers. The office was abol- 
ished in France in 1667, and the present powers 
of the constable in England are similar to those 
in the United States, where he is to the justices 
court what the sheriff is to the county court 
(see page 67). 

The 3 assessors (from Latin assidere, to sit by, 
as judges) besides acting (1) as fence-viewers 
(see page 46), 

(2) make an inventory of all the real estate 
(property in houses and land) in the town, record- 
ing the number of acres owned by each person, 
and estimating the real value of the land, includ- 
ing the buildings thereon ; 

(3) make an inventory of the personal property 
(all property other than real estate, such as 
money, stocks, bonds, mortages, merchandise, 
etc.), and after deducting just debts and exempt 
property assess it at its full value ; 

1377:191. 



ASSESSORS ; COLLECTOR 39 

(4) meet on the 3d Tuesday of August and 
on Sept. 1 of each year to hear complaints and 
to rectify mistakes in the assessment roll ; 

(5) on or before Sept. 1 deliver the assessment 
roll to the town clerk, to remain on view for 15 
days, public notice being given ; 

(6) on or before Sept. 1 deliver to the super- 
visor a copy of the roll, making oath that it is 
correct according to the best information they 
have been able to obtain. 

The supervisor delivers the roll to the board of 
supervisors at their next meeting. The board 
of supervisors examines the rolls from the dif- 
ferent towns, equalizes and fixes the taxes for 
the county, issues warrants for their collection, 
and delivers them with the roll to the supervisor. 

He delivers the same to the collector on or be- 
fore Dec. 15, and delivers a copy of the same to 
the town clerk. A board of three State asses- 
sors afterwards takes these county roUs and 
equalizes fche taxation. See pages 208, 212. 

The collector (from Latin con^ together, and 
legere, to gather) (1) receives from the supervisor 
(see page 65) the tax-list and warrant; 

(2) notifies the public that he has received it, 
and where taxes may be paid ; 

(3) if the tax is not paid within 30 days calls 
upon the owner of the property and demands 
payment ; and if payment is still refused or neg- 



40 TOWN OFFICERS 

lected may levy upon any personal property and 
sell it at public sale, refunding to the owner what- 
ever is received above the tax and cost of collec- 
tion. 1 When unable to find personal property to 
collect upon, he so reports to the county treas- 
urer. 2 

Property thus sold may be redeemed under cer- 
tain conditions. 

(4) pays over the money collected to the super- 
visor and other officers named in the warrant ; 

(5) pays on or before Feb. 1 to the county 
treasurer (see page 69) all money collected for 
the county and State. 

The pay is by fees of 1 ^ upon taxes paid in 
during the first four weeks after the warrant is 
posted, and 5 ^ on those paid afterward. He 
gets extra fees where property is sold for taxes. 

The overseer of the poor looks after persons in 
indigent circumstances, and provides for them 
either at home or in the county poor-house, so 
far as the town is legally holden or may direct. 

Paupers who have no legal settlement in any 
town, that is are not legal residents therein, are 
supported by the county ; hence it is part of the 
duty of the overseer of the poor to ascertain 
whether the responsibility rests on the town or 
on the county. When a town pauper is sent to 
the county poor-house (see page 69), the town 
pays for his maintenance. In some counties all 

1 159:1901. 2517.1901. 



OVERSEER OF POOR; HIGHWAY COMMISSIONER 41 

paupers are supported by the county, as a county 
charge. 

When temporary aid is furnished, in the hope 
of enabhng persons to help themselves and not 
become a permanent burden upon the commun- 
ity, it is called out-door relief. It is always bet- 
ter to prevent poverty than to sustain it. 

The pay is 12.00 a day. The number may be 
one or two, as the town determines by vote. 
The town may also vote to have 1 overseer ap- 
pointed by the town board ; in this case the term 
of office is 1 year beginning May 1, and the 
salary is fixed by the town board, but may not 
exceed $1,000. 

Paupers in the whole Union in 1880 were 88,- 
665, of whom 67,067 were inmates of the alms- 
houses, and 21,598 in receipt of out- door relief. 
This was only 1 to 565 of the whole population. 
In England and Wales in 1881 there were 803,- 
126 paupers, to a population of 25,974,439, or 1 
to 32 of population, i 

The highway commissioners besides (1) acting 
as fence-viewers (see page 46), 

(2) have the care and general supervision of 
the highways and bridges; 

(3) when directed by a jury called for that pur- 
pose may lay out new roads or discontinue old 
ones ; 

IB. i. 588. 



42 TOWN OFFICERS 

(4) upon petition of all the owners of the prop- 
erty through which the road is to pass may lay 
out a road without a jury ; 

(5) meet with commissioners of other towns 
to consider laying out and altering roads extend- 
ing into both towns ; 

When the commissioners of different towns 
cannot agree, a board of 3 commissioners is ap- 
pointed by the county judge ;^ 

(6) divide the town into road districts, and ap- 
point an overseer for each (see page 49) ; 

(7) require reports from these overseers on 
May 1 of each year of repairs needed, and per- 
sonally inspect the same within 20 days, and 
superintend the repairs ; 

(8) assess each taxable inhabitant in each dis- 
trict and determine the amount of tax for each, 
and the amount of work needed oh the road ; 

(9) receive the reports and the unexpended 
money from the overseers, expend the road 
money as directed by the town, and report to 
the town board ; 

(10) inspect the highways and bridges between 
Sept. 1 and Sept. 15 of each year, and if it ap- 
pears that the required labor has not been per- 
formed, report to the supervisor what is due; 
whereupon, the supervisor, after a hearing, re- 
ports the same to the board of supervisors, and 

1 162:1901. 



BOARD OF AUDITORS ; TOWN BOARD 43 

the labor, estimated at $1.50 a day, is collected 
like unpaid taxes. 

Where a railway is seeking right of way 
through a town the matter is referred to the 
highway commissioners, and their responsibility 
may thus become very serious. 

For county roads see page 70 ; for side-paths 
see page 71. 

Where a pound (from Anglo-Saxon pz^ncZ, an 
enclosure) is maintained by public authority for 
the restraint of animals wandering astray or 
trespassing, there is a poundm aster, to keep 
beasts delivered to him until reclaimed and 
charges paid. 

Some States have also a field driver, whose 
duty it is to take stray animals to the pound. 

A board of auditors may be elected by towns 
that vote to have such a board. It hears and 
examines all claims against the town for money, 
and certifies their correctness to the supervisor. 
It also examines the accounts of the overseers 
of the poor and of the highway commissioners, 
and in certain cases, of justices of the peace 
and constables. 

Besides these officers directly elected, there 
are certain boards made up of persons elected 
for other purposes and acting on these boards ex 
officio (by virtue of office). 

The town board consists of the supervisor, who 



44 TOWN OFFICERS 

is chairman, the town clerk, and the justices of 
the peace or any two of them. 

It holds at least two meetings annually at the 
town clerk's office. (1) On the Tuesday preced- 
ing the biennial town meeting and on the corres- 
ponding dates in each alternate year, to audit 
the accounts of all officers who receive and dis- 
burse money for the town. The board makes a 
statement and appends a certificate thereto show- 
ing the accounts of each officer, and files the 
same in the office of the town clerk open to the 
public for inspection. 

(2) On the Thursday preceding the annual 
meeting of the board of supervisors, to audit 
accounts and allow or reject charges, claims and 
demands against the town. Duplicates of ac- 
counts allowed and certificates for the same 
must be made and signed by the majority of the 
board. One of these duplicates is to be kept on 
file in the town clerk's office, and one is to be 
delivered to the supervisor of the town to be laid 
before the board of supervisors at their annual 
meeting. This work is done by the board of audi- 
tors (see page 43), where the town elects such a 
board. 

The board of supervisors causes the amounts 
specified in these certificates to be levied and 
raised upon the towns in the same manner as 
they direct to levy and raise for other town 



TOWN BOARD; BOARD OF HEALTH 45 

charges. The town tax hst for each town is 
made by some one ordered by the board of super- 
visors, usually by their clerk. 

The town board appoints inspectors of election 
(page 48) and truant officers (see page 307). 

It is also authorized by law to fill vacancies oc- 
curring in the town offices. Such appoint- 
ments hold until the next biennial town meeting, 
except in cases, of justice of the peace when 
the term expires Dec. 31, succeeding, in which 
case the appointee fills only the unexpired term. 

It also has the care of abandoned ceme- 
teries ;i and on petition of a majority of the 
owners of taxable real property may establish a 
v^ater district and appoint water commission- 
ers ; ^ or establish a sewer system and appoint 
sewer commissioners. ^ 

In Erie county its powers are much extended. ^ 

The board of health is made up of the super- 
visor, jusfcicete, town clerk, and a citizen appointed 
by these. It appoints a health oificer, who 
must be a physician, and enforces sanitary regu- 
lations for the town, co-operating with the state 
commissioner (see page 205) when required. 

It supervises the registration of births, deaths, 
and marriages. 



386:1901. 2 471:1901. 3348:1901. ^ggs-igoi. 



46, TOWN OFFICERS 

The assessors and the highway commissioners 
constitute the fence yiewers, who (1) settle dis- 
putes as to partition fences ; 

(2) order changes and removals in fences ; 

(3) determine where fences or streams or other 
hne fences shall be placed, and divide the expenses 
among the owners ; 

(4) settle damages arising for trespasses of 
cattle on account of poor fences ; 

(5) appraise damages for sheep killed by dogs, 
etc. 

They serve only on application: The pay is 
$1.50 a day. 

Where the township system of schools prevails 
town officers are elected to take care of them — 
in Indiana a trustee ; in Pennsylvania a board of 
school directors ; in New England a school com- 
mittee. 

In some states there are surveyors of lumber, 
who measure and mark lumber offered for sale ; 
and sealers, who test and certify weights and 
measures used in trade. 

Bonds (from Sanscrit bandh, to bind) are re- 
quired of the supervisor, justices of the peace, 
constables, collector, overseer of the poor, and 
highway commissioners, since all of them handle 
money belonging to the town, and the town must 
be secured against loss. 

The following oatli of office must be taken 



BONDS ; OATH OF OFFICE 47 

(277) by all officers before they enter upon their 
duties : 

*' I do solemnly swear (or affirm) that I will 
support the Constitution of the United States, 
and the Constitution of the State of New York, ' 
and that I will faithfully discharge the duties of 

the office of , according to the best 

of my ability. ' ' 

A further oath must be taken (278) that the 
officer has not used bribery, which is a felony ^ 
(280). 

No other oath, declaration, or test is required 
as a qualification for any office of public trust 
(278). 

The county clerk administers this oath to the 
justices of the peace, and a justice of the peace 
to all other town officers except inspectors of 
election, one of whom administers it to the 
chairman, and the chairman to the others. 

iBi.444. 



CHAPTER V 

SUBDIVISIONS OF THE TOWN 

While the town is for most purposes the unit 
of government, it is in some states divided into 
districts for elections, for the care of roads, and 
for the management of schools. 

Election districts are established by the town 
board for the convenience of voters in towns so 
large that it is inconvenient to meet at a single 
poll. 

For each election district, whether the entire 
town or a subdivision of it, 4 inspectors of election 
are appointed by the town board within 30 days 
after each biennial town meeting, 2 from each 
of the lists furnished by the town primaries of 
the two parties which cast the highest and the 
next highest number of votes at the last preced- 
ing election 1 (see page 183). 

If more than one Hst is presented by either 
party, that is used which comes from the faction 
of the party was recognized as regular at the 
last preceding state convention of the party, or 
that is recognized by the state committee. ^ 

2 poll clerks are appointed, by the town board. 
They keep the poll book, and enter by continu- 

1 536:1901. 2536.1901. 

(48) 



ELECTION AND HIGHWAY DISTRICTS 49 

ous numbers the names of the voter voting, and 
the number of ballots voted, compare the poll book 
with the register, and complete the tally sheet. 

2 ballot clerks are appointed, by the town 
board. They deliver the official ballots to the 
voters, announce the voter's name and the num- 
ber of the ballot, and take care of the unvoted 
ballots. 

Each of these officers must be a quahfied voter 
in the district, of good character, able to speak 
and read the English language understandingiy 
and to write it legibly, with a general knowledge 
of the duties of the office. He must not be a 
candidate for any office voted for in the district ; 
or hold any public office except notary public, 
commissioner of deeds, assessor, justice of the 
peace, village trustee, water commissioner, over- 
seer of highway, or a school district office ; or be 
employed in any pubhc office or by any public 
officer except these. ^ The term of office is 2 
years. 

Highway Districts 

We have seen (page 42) that the highway com- 
missioners divide the town into road -districts, 
and appoint for each an overseer or patlimaster. 
The pathmaster is to repair and keep in order all 
roads and bridges. He makes a list of the names 

1 536:1901. 



50 SUBDIVISIONS OF THE TOWN 

of the inhabitants of his district hable to work 
on the highway, and dehvers it within 16 days 
of his appointment to the town clerk for the use 
of the commissioner of highways. He notifies 
these persons when to work on the road, sees 
that their taxes are worked out or paid ; collects 
all fines and commutation money ; on or before 
Sept. 1 reports to the highway commissioner 
(see page 42) all names of delinquents and the 
amount due, charging $1.50 for each day's labor 
so due; and pays over to him the amount of 
money remaining in his hands unexpended. His 
pay above his time for taxes is 12 J cts. an hour. 
Whatever may have been the advantages of 
this system in the past, it is now wasteful and 
ineffective. The roads are '^ mended" usually 
by digging out the gutters and heaping the dirt 
into the centre. The natural soil when it is wet 
is muddy, when it is dry is dusty, and when it 
is frozen is rough. Most good roads are macada- 
mized (so named from a Scotchman named Maca- 
dam who invented the process) — that is, covered 
to a considerable depth with small broken stone, 
that wears down to a hard surface. But this is 
an expensive process and requires scientific super- 
vision entirely out of district reach. New York 
has now a good-roads law (see page TO), which 
provides that upon vote of the supervisors of a 
county the State will supervise and pay half the 



HIGHWAY AND SCHOOL DISTRICTS 51 

cost of thoroughly made roads. Thus far the 
amounts appropriated by the legislature have 
been insufficient to meet the demand from all 
over the State for roads of this kind. 

Most States authorize the building of plank or 
macadamized roads by private corporations, 
which are repaid for the cost of construction 
and maintenance by toll (from the Anglo Saxon 
word meaning what is counted out in payment), 
which is paid by travellers at certain points 
marked by gates. The modern tendency is to 
change toll-roads into public roads. 

The importance of good roads was recognized 
in the provision of the United States constitu- 
tion (32) giving to congress power ' ' to establish 
post-offices and post-roads ' ' ; and though the 
railway has made the necessity less, it is still a 
serious matter of public economy that the high- 
ways should be well made and well kept. 

School Districts 

The school district is a survival of the early 
schools of New England, where each parish (see 
page 24) had its school as well as its church, the 
pastor often being the school teacher. When 
other sects got foothold this was no longer prac- 
ticable, and the school became entirely separated 
from the church. As the towns grew to include 
several parishes, they also included several school 
districts, which for a long time retained their 
individual control. 



52 SUBDIVISIONS OF THE TOWN 

New England, New Jersey, Pennsylvania, In- 
diana and many other states have discarded the 
district system, on the ground that the unit is 
too small to secure intelligent and economical 
naanagement, to provide satisfactory instruction, 
or to give numbers enough to attain the best re- 
sults. Many efforts have been made to establish 
the town system of schools in New York, but 
thus far without success. Some approximation 
toward it has come from the law permitting 
small districts to contract with larger districts to 
instruct their children, the smaller district usu- 
ally providing a conveyance to carry the children 
to the school-house. 

In the western states, where the rectangular 
townships of 6 miles square prevail, it is cus- 
tomary to build roads on the mile lines, and put 
a school-house on each alternate cross-roads, giv- 
ing 9 for the town. The 16tK and sometimes 
the 36th sections in each township were in 17 8 T 
set by congress for school maintenance. 

Georgia makes the entire county a school dis- 
trict for the support of public schools. 

The annual meeting is held on the 1st Tuesday 
in August. But if a district contains 300 or 
more children of school age, the election of school 
district officers must be held on the following day. 

Special meetings are called by the trustees. The 



SCHOOL DISTRICTS 53 

clerk or some other person, if the office be vacant 
or he refuses to act, must serve a notice upon 
each quahfied voter at least 5 days before the day 
of the meeting, stating the purpose for which 
the special meeting is called ; no other business 
can be transacted. 

A qualified voter is any person, man or woman, 
(a) of 21 years of age, (b) who has resided in the 
district for the preceding 30 days, (c) a citizen 
of the United States ; and (1) who owns or hires 
or holds under contract to purchase real property 
in such district liable to taxation for school pur- 
poses, or (2) who is a parent of a child of school 
age that has attended the district school at least 
8 weeks within one year preceding; or (3) who 
has permanently residing with him or her any 
such child; or (1) who owns and was assessed 
on the last preceeding assessment roll of the town 
exceeding $50 of personal property, exclusive 
of such as is exempt from execution. 

The voter piust have all the qualifications (a), 
(&), (c); and one of the qualifications (1), (2), (3), 
(4). When the right to vote depends upon chil- 
dren not their own residing in a family, only the 
head of the family may vote. 

Unlike the election district and the road dis- 
trict, which are mere convenient subdivisions of 
the town, the school district is a political unit, 
with legislative and executive powers. (Com- 
pare with powers of the town, page 28). 



54 SUBDIVISIONS OF THE TOWN 

Its legislative powers include principally (1) the 
erection and care of school buildings, (2) fixing 
the amount of school tax for the coming year, 
(3) selection of text-books, and (4) entering into 
contract with another school to instruct its chil- 
dren. 

The first two of these powers are not unlim- 
ited. The school commissioner has power to 
order repairs upon the school-house, or to con- 
demn it and order another built ; nor can it vote 
more than S500 for building, hiring, or purchas- 
ing a school-house without approval of the 
school commissioner, or build a school-house un- 
til he has approved in writing of the plans for 
ventilation, light, and heating. If it fails to 
vote money enough to pay such teachers wages 
as the trustees choose to fix, the trustees may 
levy a tax to cover the amount required. The 
minimum length of the school year is fixed by 
law at 32 weeks. 

Its executiye powers are exercised through the 
following school officers, all elected for one year, 
except in the case of trustees where there are 3. 

All these officers must be (1) residents of the 
district, (2) qualified to vote at its meetings, and 
(3) able to read and write. No school commis- 
sioner or supervisor may be trustee, nor may a 
trustee be clerk, collector, or librarian. A major- 
ity vote is required (see page 161). 



SCHOOL DISTRICTS 55 

There may be 1 trustee elected for one year, 
or 3 elected for 3 years each. The trustee is the 
chief executive officer of the district, with the 
sole power of making contracts and accepting 
work done. He has custody of the school prop- 
erty, employs the teachers, ^ admits and expels 
pupils, establishes the regulations and courses of 
study, raises by tax the money needed, and 
makes the annual report. 

In the hiring of teachers he is limited to those 
legally qualified, that is, holding either (1) a uni- 
form certificate, (2) a training class certificate, 
(3) a normal diploma, (4) a college graduate cer- 
tificate, (5) a state certificate, or (6) a temporary 
license. This licensing of teachers is under con- 
trol of the state superintendent (see page 309). ^ 

He gets no salary, but may be fined |5 if he 
refuses to serve, and $10 if he undertakes to serve 
and neglects his duty. He may be removed by 
the state superintendent for neglect or disobedi- 
ence of orders. 

In fixing the course of study, he is required to 
provide temperance instruction. The law requires 
that the nature of alcoholic drinks and other 
narcotics and their effects on the human system 
shall be taught to pupils between the 3d year 
primary and the 2d year of the high school by 

1 B ii.286. 

2 For further particulars see Bardeen's School Law, pp. 89-104. 



56 SUBDIVISIONS OF THE TOWN 

text-books in the hands of all pupils, and in the 
three lowest grades orally. ' 

This law has caused extended and warm dis- 
cussion. Its friends claim that it is a needed 
protection of the young against intemperance; 
its enemies, that it calls their attention to that 
of which they might better remain in ignorance. 

The clerk makes out and keeps the records of 
the school district, posts notices of meetings, 
calls a special meeting when office of trustee is 
vacant, notifies persons elected to office, etc. 

He receives no pay for his services, but is fined 
$50 if he neglects to deliver the records to his 
successor. 

The collector must give a bond approved by 
the trustee. He receives from the trustee the 
tax warrant, collects the taxes, levies upon and 
sells personal property for unpaid taxes, and pays 
out money received upon order of the trustee. 

He returns the tax-list and warrant to the 
trustee, to be given to the town clerk for preser- 
vation ; and reports his collections, receipts, and 
disbursements to the school meeting, and on or 
before the 1st Tuesday in March to the supervisor. 

He is paid by 1 ^ upon money received within 
2 weeks of posting the notice and 5 ^ on sums 
collected thereafter. If he levies upon property, 
he receives 10 cts. a mile for travelling expenses. 

A vacancy in the office is filled by the trustee. 



UNION SCHOOL DISTRICTS 57 

A treasurer may be elected by majority vote 
as custodian and disbursing officer of all school 
money, paying out the same on order of the 
trustee. 

A librarian is appointed by the trustee, usu- 
ally a teacher, to have charge and supervision of 
the library. 

Tacancies in the office of trustee are filled by 
election if held within 30 days ; otherwise through 
appointment by the commissioner. Those in 
other offices are filled by the trustee. 

A union free school may be established in any 
district by a majority vote at a meeting called 
for the purpose. 

A board of education of not fewer than 3 or 
more than 9 is elected in place of the trustees of 
the ordinary district. It has, besides all the 
powers of trustees, the following additional 
powers : 

(1) to elect the clerk and treasurer, (2) to fill 
vacancies on the board, (3) to adopt text-books, 
(4) to purchase furniture, — powers that in com- 
mon districts belong to the district meeting ; 

(5) to purchase apparatus, (6) to repair school- 
houses and furniture, (7) to provide fuel and 
other necessaries, without the restriction in 
amount imposed on trustees ; 

(8) to hold gifts and legacies, (9) to remove 



58 SUBDIVISIONS OF THE TOWN 

members of the board, to appoint (10) a superin- 
tendent (in villages of 5,000), and (11) an attend- 
ance officer, (12) to establish truant schools, (18) 
to levy without vote of the district a tax for con- 
tingent expenses — powers that do not exist in 
the ordinary district. 

The school meeting also has greater powers 
than in an ordinary district, including (11) to 
vote a tax for a school- house without limit or 
approval of commissioner, (15) to provide free 
text-books, and (16) to establish an academical 
department (see page 322). 

For further details as to legal provision for 
education see page 304. For table of district 
officers see page 2. 



CHAPTEE VI 

THE COUNTY 

As in the Eoman system several gentes brought 
together formed the curia, so m the Teutonic 
and Enghsh systems, several towns were brought 
together to form the hundred, and disputes be- 
tween the towns were settled at the hundred 
moot, like the town moot or meeting, but on a 
larger scale. 

Mr. Green says in his " Short History of the 
English People " : " The four or ten villagers 
who followed the reeve of each township to the 
general muster of the hundred, were held to 
represent the whole body of the township from 
whence they came. Their voice was its voice, 
their doing its doing, their pledge its pledge. The 
hundred moot, a moot which was made by this 
gathering of the representatives of the town- 
ships that laV within its bounds, thus became at 
once a court of appeal from the moots of each 
separate village, as well as of arbitration in dis- 
pute between township and township. ' ' 

The name must at first have meant a numeri- 
cal hundred of some kind, but lost its proper 
force aud was used in a purely conventional 
sense as a geographical division. 

(59) 



60 THE COUNTY 

It fell out of use in England, but appears in 
Delaware, where it is used instead of town for 
the divisions of counties (see next page). 

A group of hundreds formed a tribe or ga or 
shire ; as the town was a stationary clan, so the 
shire was a stationary tribe. In early Enghsh 
history this corresponded with an American state, 
having a fuU and separate organization. 

It might be independent, it might lean upon a 
stronger neighbor, it might become a division of 
a kingdom, but it was the lowest group that had 
a distinct political power. The English nation 
grew out of the union of these shires, which 
retained their self-government long after they 
had been united under one king. 

The name shire comes from shear, and means 
something shorn off. The old tribal divisions 
were wiped out in the Danish contest of the 9th 
century, and in the English re-conquest the land 
was mapped off or sheared out into shires, 
grouped conveniently about a central town, and 
bearing its name instead of that of the ancient 
tribe, as Worcestershire. The town in which 
the public buildings of the county are erected is 
known as the sliire town. 

In use the word shire became supplanted large- 
ly by the corresponding French word county, the 
territory held by a count, (from French comte, 



HISTORY 61 

Latin comes, a Gompanion, a title never intro- 
duced into England, though the wife of an earl 
is called a countess). As such it has spread itself 
through all lands ruled, settled, or influenced by 
England. 

In the southern states the county became the 
unit, if indeed there could be said to be an inde- 
pendent life below the* state. 1 Divisions of the 
county were only for minor conveniences, as for 
election districts, for limiting the jurisdiction of 
a justice of the peace, etc. These divisions were 
sometimes called towns, but in Alabama and 
Kentucky they were called precincts, in Georgia 
militia districts, in Tennessee civil districts, in 
Virginia and West Virginia magisterial districts, 
in Louisiana wards or parishes, in Mississippi 
beats, in Delaware hundreds. The school is now 
becoming the nucleus of self-government in the 
south, as the church was in New England 200 
years ago. ^ 

While in l^ew England the town has a distinct 
name, with historical associations of which the 
inhabitants are proud, in the south these associa- 
tions all cluster about the county. 

In the western States so many of the emi- 
grants were from the south that the New Eng- 
land township system was largely modified by 
the county system. ^ 

IB i.563, 561 586. ^ ^ i.571. 3 3 j 573, 



62 THE COUNTY 

In New England each county had its own regi- 
ment of mihtia, as each town had its own com- 
pany, but in general the county was not an im- 
portant division. 

In New York the Dutch settlers created towns 
and manors and villages, but no counties. After 
the English conquest in 1664: a new system grew 
up, giving the county more prominence than in 
New England, and the town more prominence 
than in the south. Originally the county busi- 
ness was mostly judicial; but in 1703 a board of 
supervisors was constituted, made up of one 
supervisor from each township. This board has 
control over the towns, but is made up of repre- 
sentatives from the towns, thus forming in the 
fullest sense a represeutatiye goyernment. 

We have seen (page 26) that the township sys- 
tem is a pure democracy, and that the representa- 
tive system was introduced when a few of the 
villages went to the muster of the hundred (see 
page 59). 

The sliire-moot was a still more important 
assembly. It was attended by a reeve and 4: free- 
men from every hundred, deputed to act on be- 
half of those whose interests they had come to 
guard. '' The shire-moot was also the general 
folk-moot of the tribe, assembled in arms, to 
whom their leaders referred the decision of ques- 
tions of peace and war ' ' ; but for minor matters 



REPRESENTATIVE GOVERNMENT 63 

it was not practical for the entire tribe to assem- 
ble, and it was found wiser for each town to 
send men who knew its particular needs and 
would endeavor to secure them. 

New York by putting more of the important 
business under county control has a government 
less purely democratic and to a greater extent 
representative than New England. Counties 
are organized by the legislature. 

Pennsylvania carries the county system still 
farther. Instead of a board of supervisors 
elected one from each town, it has a board of three 
commissioners elected by the county at large. 

In New York each town of the county, large 
and small, has an equal representation in the 
board of supervisors. In Pennsylvania each 
town is represented only proportionally to its 
number of voters. The difference is the same 
as that between the representation of states in 
the United States senate and house (see page 453). 

Where one of the towns in a county is very 
much larger than the others, usually part or aU 
of it becomes a city, and each ward of the city 
elects a supervisor. Hence when city charters 
are granted by the legislature the towns are care- 
ful to see that the number of wards created does 
not give the city disproportionate representation. 
In 1901 the town of Oneida, Madison county, 
became a city. The charter as originally drawn 



64 THE COUNTY 

provided for 6 wards, but the number had to be 
reduced to 3 before the charter was granted. 

In New England the towns used to send each 
one member to the legislature, and this is still 
the case in Connecticut, where, in 1901, 12 cities 
with a population of 484,000 sent the same num- 
ber to the house of representatives as 12 towns 
with a population of 8,800. The tendency of 
such representation is to make action provincial, 
the members caring more for the interests of 
their own section than for that of the state at 
large. 

Statistics of the counties of New York with 
map are given on the first two inside cover pages 
of this book, and the counties as they existed 
during the revolutionary war on the following 
page. 

The town is its own legislature, but the legisla- 
ture of the county is the board of supervisors 
(257). Of the duties of the supervisor as a 
town officer we have already spoken (page 34), 
and of the duties of the board of supervisors as 
a board of county canvassers we shall speak later 
(page 173). We are now to consider its legisla- 
tive duties. These are : 

(1) to pass upon the abstracts of accounts as 
audited by the several town boards or boards of 
auditors (see page 43) ; 

(2) to receive the reports of the county officers 



BOARD OF SUPERVISORS 65 

and to audit their accounts and all lawful claims 
against the county ; 

(3) to equalize the assessed valuation in the 
towns, to apportion the state and county taxes 
(see page 300), to cause tax lists and warrants to 
be made out, and to issue warrants to the collec- 
tors (see page 39) ; 

(4) to fix the salary of 'the various county 
officers ; 

(5) to make appropriations for county expenses 
(247); 

(6) to divide the county into towns, and into 
assembly and school comraiesioner districts ; 

(T) to fix the time for town meetings (page 31) ; 

(8) to appoint at its pleasure a county engineer 
(see page 70). 

It has supervision of the county houses, jails, 
and other county property and may change the 
county seat. 

The board is organized by the election of a 
chairman; and of a clerk, who records and pub- 
lishes the proceedings, and sends to the state 
comptroller (see page 200) on or before the 2d Mon- 
day in December the aggregate and equalized 
valuation of the real and personal estate in each 
tax district in the county and the amounts of 
tax assessed for all purposes, with valuation and 
other statistics as to corporations. 



CHAPTER VII 

THE COUNTY CIVIL OFFICERS 

The other officers of the county are elected at 
the general state election (see page 165). The term 
of office is 3 years, except in the case of the county 
judge and the surrogate, whose terms are 6 years 
(for reason, see page 262) ;i and of the loan com- 
missioners (see page 74) who are appointed by 
the governor, for 2 years. In New York and 
Kings counties the terni is 2 or 4 years (260). 

Yacaiicies in the offices of county judge, surro- 
gate (219); sheriff, district attorney, and coroners 
are ffiled by the governor ; county treasurer and 
superintendent of the poor, by the board of super- 
visors ; school commissioner, by the county judge. 

The sheriif is the executive officer of the county. 
He may not hold any other office during his term, 
and so great is his power that to prevent abuse 
of it he is not eligible for re-election. He may be 
removed by the governor upon charges (260). 
The headman of the old English township was 
called the town reeve, and of the shire, the shire 
reeve, shortened into sheriff. He is the chief 
ministerial officer of the court. ^ The corres- 
ponding officer of the feder.al courts (see 284) is 
called marshal. 



1 In Greater New York 14 years. ^ g i.570. 
(66) 



SHERIFF ; CORONERS 67 

His duties are (1) to execute civil and criminal 
processes — that is personally or by deputy, to 
serve legal papers, summon jurors, levy execu- 
tions, sell property levied on, etc. ; 

(2) to be present at the drawing of jurors (see 
page 82), and cause them to be legally summoned ; 

(3) to attend the courts held in the county, 
and have custody of the prisoners, — he is '' the 
right arm of the judge ' ' ; 

(4) to have charge of the jail and the prisoners ; 

(5) to keep peace in the county, for which pur- 
pose he may summon and compel the assistance 
of citizens when necessary. 

He has the appointment of deputies and is 
responsible for them. 

He is paid by fees ; or in some counties by 
salary, or by salary and fees. He gives a bond 
with 2 sureties for $15,000, which must be re- 
newed each year. 

As headman of the county the sheriff in early 
English times had judicial functions, and in 
1194, as a check upon the sheriff, a law was 
passed directiij^ the counties to elect coroners 
(from corona^ crown, because this officer was 
originally prosecuting officer for the crown), to 
hold court in the name of the king. This tradi- 
tion remains only in the 3d and 4th of the duties 
named below. New York counties have 4 cor- 
oners who (1) look after and inquire into all mat- 



68 COUNTY CIVIL OFFICERS 

ters concerning persons slain, or who have died 
mysteriously ; 

(2) subpoena witnesses, ascertain as far as 
possible all the facts in regard to the death, and 
issue warrants for arrest of parties presumed to 
be guilty, to be held for the grand jury, and 
report to the district attorney ; 

(3) in case of a vacancy in the office of sheriff, 
and there being no under-sheriff, one of the cor- 
oners designated by the county judge performs 
the duties of sheriff until said vacancy be filled 
by election or appintment ; 

(4) have power to arrest the sheriff upon crimi- 
nal processes. 

They are to make reasonable charges for hold- 
ing inquests, to be audited by the board of super- 
visors. For performing the duties of the sheriff 
they receive the same fees as the sheriff. When 
a coroner cannot be secured for an inquest, a 
justice of the peace may act. ^ 

The county clerk is the recording officer of the 
county. He (1) records deeds, mortgages, satisfac- 
tion papers, etc., and has custody of the records. 

In New York, Kings, and Westchester coun- 
ties there is a separate officer called the register 
(257), who has charge^ of the recording of deeds, 
mortgages, etc. ; 

(2) prepares the ballots for elections, is clerk of 
the board of county canvassers (see page 173), 

1 379:1864. 2174.1901. 



COUNTY CLERK AND TREASURER 69 

and records the election returns, and transmits 
the results to the secretary of state ; 

(3) draws the grand and petit juries (see page 
81), and makes return of the same ; 

(J:) is clerk of the courts held in the county (225), 
administers the oath to jurors and witnesses, and 
records the judgments. 

He is paid by fees or by salary, and may be re- 
moved on charges by the governor (260). 

The county treasurer (from Greek thesauros, 
a store laid up) is the financial officer of the 
county. He (1) receives the money collected by 
the town collectors for state and county taxes ; 
and may sell lands for unpaid taxes ^ (see page 40) ; 

(2) pays over to the comptroller (see page 200) 
the amount due the state ; 

(3) pays out the amount due the county, as 
directed by law ; 

(4) receives from the comptroller the school 
money due the county, and pays the same over 
to the supervisors, as directed by the school 
commissioner's certificate; 

(5) makes annually a general financial state- 
ment to the board of supervisors ; 

(6) when his time has expired deUvers his 
books and county funds to his successor, upon 
forfeit of 81,2502. ^g tohquorlaw, see page 203. 

His salary is fixed by the board of supervisors 

1 517:1901. 2 113:1901. 



70 COUNTY CIVIL OFFICERS 

at least 6 months before election, and cannot be 
increased or diminished during his term of office. 

The superintendent of the poor (there may be 1 
or 3) has the general charge of the county poor- 
house, appoints persons to take charge of it, ad- 
mits inmates (see page 40), and may send insane 
persons to the state asylums at the county expense. 

In counties where there are no adequate hos- 
pital accommodations for indigent persons requir- 
ing treatment, he may upon certificate of a 
physician approved by the board of supervisors 
send at the expense of the county such persons 
to the nearest hospital approved by the state 
board of charities (see page 206). 

The town overseer of the poor (see page 40) 
may do the same at the expense of the town. ^ 

He renders to the board of supervisors an an- 
nual account of his action and his expenditures. 

He is paid by the day, or by salary fixed by 
the board of supervisors. 

A county engineer may be appointed by the 
board of supervisors, which fixes his salary. 
The term of office is 3 years, but he may be re- 
moved at the pleasure of the board. ^ 

His duties are to construct highways under the 
good roads law, ^ under which the board of super- 
visors may, and upon petition of the owners of 
a majority of the hneal feet fronting upon it 

1103:1901. 2 239:1901, sus-iggs. 



sup't of poor : side-path commissioners T1 



must, pass a resolution that public interest de- 
mands that a certain highway be improved. 

Thereupon the state engineer must investigate 
the need. If he approves, he recommends the 
kind of improvements he judges wisest, with esti- 
mate of the cost of the same, and forwards the 
plan and estimate to the board of supervisors. 
If the board vote that the improvement be 
made, it notifies the state engineer, who adver- 
tises for bids and superintends the construction 
of the road through the county engineer, if 
there be one, or if not through some competent 
person whom he appoints. 

Of the cost of the improvements 50 % is paid 
by the state, and if the road was built by peti- 
tion 15 ;;^ by the county and 35 ^ by the town in 
which the highway is located ; if it was not built 
by petition, 35 "}(> is paid by the county and 15^ 
by the town. The road shall thereafter be main- 
tained by the highway commissioners under 
direction of t]ie state engineer as a county road, 
the expense to be apportioned among the towns 
benefited. ^ (See page 50.) 

On petition of 50 resident wheelmen, the 
county judge of any county except Albany may 
appoint from resident citizens 5 or 7 citizens 
who are cychsts, as a county board of side-path 
commissioners, 2 each to serve 5 years from Jan. 
1 of the year of appointment. 

1464:1901. 2640:1900. 



72 COUNTY CIVIL OFFICERS 

The board may construct and maintain side- 
paths along any public road or street, provided 
they obtain the written approval, in a town of 
the commissioner of highways or of the super- 
visor, in a village of the trustees, and in a city 
of the common council. Where there is a regu- 
larly constructed sidewalk they must obtain also 
the consent of the persons owning the abutting 
lands. The paths must not be less than 3 or 
more than 6 feet wide except by consent of the 
owners of the abutting lands. 

The board each year adopts a badge to be 
attached to the bicycle and determines the 
amount of fee, not less than 50 cents or more 
than 11.00,1 q^ payment of which the badge is 
given, to be attached to the left side of the front 
fork, and without such badge no wheel must be 
ridden upon a side-path. The money so received 
for badges constitutes a side-path fund, to be 
deposited with the county treasurer, and to be 
drawn on warrants signed by a majority of the 
board (1) for repairing existing paths, (2) for 
constructing new ones, (3) for planting shade- 
trees along the paths by consent of the owners 
of abutting lands, (4) for maintaining order on 
the paths, and (5) for the necessary expenses, 
including repayment of the necessary personal 
disbursements of the members of the board, who 
receive no other payment. 

1 In Monroe county the fee is 25 cts. 



NOTARY PUBLIC ; SCHOOL COMMISSIONER Y3 

No horses, cattle, or other animals may be 
driven upon a side-path, and no person must 
ride a wheel at a rate faster than 10 miles an 
hour when passing another wheelman or a 
pedestrian. 

Any person wilfully obstructing or injuring a 
side-path or violating any of the other provisions 
here given is guilty of a misdemeanor. 

A notary public is authorized to administer and 
certify oaths, and affidavits, to protest unpaid 
notes and drafts, etc. Their number varies. 
They are appointed for 2 years by the governor, 
with approval of the senate, and are paid by fees. 

A notary may act as notary in any other 
county than his own upon filing in the county 
clerk's office therein a certificate with a fee of 
11.00.1 

The County School Officers 

The school commissioner (large counties are 
divided into two, three, or four commissioner 
districts, with a commissioner for each) is the 
educational officer of the county. 

A trustee or member of a board of education 
vacates the office when elected commissioner, 
and the commissioner must not engage in teach- 
ing during his term of office. Women are eli- 
gible to the office. The salary from the State is 
$1,000, and the board of supervisors must allow 

1657:1901. 



74 COUNTY CIVIL OFFICERS 



and may allow more for travelling expenses. 
Vacancies are filled by the county judge. 

He (1) on the 3d Tuesday of March apportions 
the school money among the districts (see page 
31), sending duplicate certificates of the appor- 
tionment to the county tr-easurer and to the state 
superintendent, and certifying to the supervisor 
of each town the amount apportioned to each 
district ; 

(2) visits the schools, and makes recommenda- 
tions as to courses of instruction, discipline, etc. 

(3) may condemn school-houses if he finds 
them unfit for use ; 

(4) upon evidence of moral character and abihty 
to teach grants to those who have passed the 
uniform examination certificates to teach, and 
may annul them ; 

(5) examines teachers classes, and grants cer- 
tificates to those who pass the examinations; 

(6) makes arrangements for teachers institutes ; 

(7) defines and alters the boundaries of school 
districts ; 

(8) on Aug. 1 makes a report to the state 
superintendent, including an abstract of the re- 
ports received from trustees. 

Two loan commissioners have charge of the 
investments of the United States deposit fund, 
under direction of the comptroller. They are 
appointed by the governor for a term of 2 years, 



SCHOOL COMMISSIONER ; LOAN COMMISSIONERS T5 

and must give bonds. They receive as fees |- % on 
the first $25,000 or less, \% from $25,000 to 
$50,000, and J ^ on more than $50,000 (in New 
York \ % in sums exceeding $50,000). 

The United States deposit fund comes from a 
surplus in 1836 of 30 million dollars in the United 
States treasury, which congress distributed 
among the States,^to be deposited, or kept till 
called for by congress. The share of New York 
was about 4 millions. It is loaned through the 
state on mortgages of from $200 to $2,000 (in 
New York city, from $500 to $5,000) at 5 ^ 
interest for 5 years. ^ All such mortgages must 
be submitted to the supervisors at their annual 
meeting, with full accounts, and this board re- 
ports to the comptroller as to the sufficiency of 
the securities. Though never called for, or likely 
to be, this is called the United States deposit 
fund. 2 

For further particulars as to school supervision 
and school funds, see page 308. 

For analysis of county government and tabu- 
lated list of county officers see page 2. 

1360:188 2413.1897 



CHAPTEE VIII 

THE COUNTY COURT 

The shire or county court of England was an 
important institution. Here were brought the 
cases that had proved too difficult for the hun- 
dred moot or court, and its decisions became 
features of the common law of England. 

Originally representative in their nature, with 
the growth of the power of land-owners these 
courts fell under control of the lords ; so when 
the king sent justices to hold courts through 
the counties, the change was welcomed by the 
people. The Magna Charta requires a king's 
justice to hold court four times a year in each 
county. These king's judges had opportunity 
to compare the customs in the different parts of 
the kingdom, and thus to evolve a system of law. 

After the king's justices of the peace had 
assumed control of the hundred court, aU the 
justices of the shire were called together four 
times a year and organized as a court of quarter 
sessions (so called because held four times a year), 
made up of the justices of the peace and the 
grand jury, which displaced the representative 
county court; and this was the form of court 
transferred to this country. 

(76) 



COUNTY JUDGE AND SURROGATE 77 

The English county court had both judicial 
and legislative functions, and when the settlers 
in Massachusetts increased so rapidly that it was 
no longer possible for all the freemen to meet, 
it became the model for the representative assem- 
bly established. Though it has lost its judicial 
functions, the legislature of Massachusetts is 
still known as the General Court. 

At present the county court is the next in 
rank above the justices court (see page 30). It 
has appellate (from Latin ad and pellere, to drive 
to) jurisdiction over cases appealed from the jus- 
tices court. Its original jurisdiction, that is the 
jurisdiction in cases begun in this court, covers : 

(1) civil cases for the recovery of money when 
the sum claimed does not exceed |2,000 and both 
parties reside in the county ; and 

(2) criminal cases not extending to murder 
and extraordinary crimes. 

The county judge (1) is the presiding judge, and 
may by request of the judge of another county 
hold court in that county. 

(2) In counties of less than 40,000 inhabitants 
he performs the duties of the surrogate. 

(3) When commissioners of highways fail to 
agree he may appoint 3 commissioners to decide . 
the matter 1 (see page 42). 

The surrogate (from Latin sub, under, and 

1 162:1901. 



78 COUNTY COURT OFFICERS 

rogare to ask, to substitute^ because these duties 
were formerly performed by church officers) : 

(1) takes proof of wills (see page 540) of real 
or personal property ; 

(2) grants letters testamentary or administra- 
tive (see page 542) ; 

(3) attends to the settlement of the estates of 
deceased persons ; 

(4) appoints guardians for children without 
parents, and directs in the care and management 
of their estates ; 

(5) holds surrogate's court when required (218). 
The prolbate (from Latin probare, to prove) of a 

will is the proof before the surrogate that it is really 
the last will and testament of the person deceased. 

No county judge or surrogate may hold office 
after Dec. 31 of the year in which he reaches 70 
years of age. Their salaries are fixed by the legis- 
lature. In counties having more than 120,000 
population, they are not allowed to practise in a 
court of record or to act as referee. They must 
be attorneys and counsellors at law (see page 259). 

The district attorney is the attorney of the 
county, and must be a counseUor-at-law in the 
supreme court. He presents to the grand jury 
complaints made to him accusing persons of 
crime, questions the witnesses, draws bills of 
indictment when found (see page 82), and prose- 
cutes the cases in the county and supreme courts. 



DISTRICT ATTORNEY 79 

In some states he is called the prosecuting attor- 
ney, or the state's attorney, since it is as the 
representative of the state and not of the county 
that he is conducting a prosecution. 

If he fails faithfully to prosecute a person 
charged with hribery he may be removed by the 
governor (260). 

His salary is fixed by the supervisors. He is 
allowed to keep up his private practice, but is 
not allowed to take a fee for prosecuting a case 
as district attorney. 

It is one of the oldest and most fundamental 
principles of our system of government that a 
man is presumed to be innocent till he is proved 
guilty. He can not be compelled to testify 
against himself (112), and neither district attor- 
ney nor judge can decide that he is guilty. The 
district attorney makes out as strong a case as 
he can against the accused person, and the judge 
states what the law is, and whether certain acts 
would constitute guilt. But whether these acts 
were committed can be determined only by trial 
by jury (from Latin jus, an oath, because a jury 
is a body of men sworn to inquire into a matter 
and declare the truth), a body of men impanelled 
and sworn to inquire into and try any matter of 
fact, and to render their true verdict according 
to the evidence brought forward. 

This comes from Magn'a charta (see page 120): 



80 COUNTY COURT OFFICERS 

'* No man shall be taken, or imprisoned, or dis- 
seized, or outlawed, or banished, or any ways 
injured ; nor will we pass upon him, nor send 
upon him [that is condemn him] unless by the 
legal judgment of his peers, or by the law of the 
land." 

There have been other methods of determin- 
ing guilt. Up to' 121 5, when it was condemned 
by the church, trial by ordeal was practised. If 
a man was accused before the court by 12 persons 
he might be thrown into deep water, in which 
if he sank he was proved innocent. The Nor- 
mans preferred trial by battle, where the accuser 
and the accused fought it out in the presence of 
the court, and victory showed which told the 
truth. 

The expression " judgment of his peers " is 
literally construed in England ; in 1901 Earl Rus- 
sell, a peer, was tried for bigamy by the house 
of lords, also peers of England. A man must 
be judged by those of the same rank. In the 
United States as there are no orders of nobility 
a man is tried by his peers if he is tried by im- 
partial men. 

This right is assumed to every citizen by both 
the New York (108) and the United States (90) 
constitutions. Even in a justices court (see page 
30) 12 men are summoned by the constable and 
6 are drawn for duty. In higher courts the 



THE GRAND JURY 81 

process is more elaborate, precautions being taken 
to secure fair trial. 

Trials by jury are required in criminal cases, 
but in civil cases may be waived by mutual con- 
sent (113). It is said that when in 1066 William 
the Conqueror wanted information about his 
new kingdom he would summon 12 men of the 
neighborhood to give the facts under oath. It 
became a practice for the sheriff to call up 12 
men to decide between claimants, and so it be- 
came the custom to summon 12 jurors for court 
trials. For centuries this jury duty was the 
only share ordinary citizens had in important 
governmental business. 

In England a distinction came to be made. 
The common freemen served on the ordinary 
jury, thereafter called petit jury, and the gentle- 
men of the county on a grand jury, which per- 
formed the different function of giving prelim- 
inary examination to the person brought before 
them on presentment either discharging him or 
holding him for trial by a petit jury. This sys- 
tem has come down to us (112, 117). 

No one can be held to answer for a capital or 
otherwise infamous crime except on indictment by 
the grand jury (112). Each year the board of su- 
pervisors apportions 300 names among the towns 
of the county in proportion to population. Each 
supervisor selects the names from his own town 



82 COUNTY COURT OFFICERS 

and hands in a list of them, and these hsts are 
deposited in a box in the county clerk's office. 
Not more than 20 or less than 14 days before the 
court sits the county clerk in presence of the 
county judge and sheriff puts his hand into the 
box and without seeing any of them draws out 
24 names. This constitutes the grand jury, Hst 
and not less than 16 or more than 23 are allowed 
to sit. 

The justice appoints their foreman, and they 
appoint a clerk who takes testimony. Only the 
witness and the district attorney may be present, 
and they must retire when the ballot is taken. 

If a majority finds the accused guilty it is said 
to indict him (from Latin in and dicere, to pro- 
claim). The district attorney draws up a bill of 
indictment and the foreman in presence of the 
jury hands it to the court, whereupon the in- 
dicted person unless already in custody is arrested 
by the sheriff. 

The power and responsibility of the grand jury 
being so great, most citizens are ready to serve, 
and appointment is considered an honor. 

In large cities the conviction of criminals 
would be difficult were not great care taken in 
the selection of the grand juries. In New York 
city the grand jurors are selected in September 
by a commission consisting of the chief judge 
of the court of appeals, the mayor, the recorder, 



THE TRIAL JURY 83 

and one judge of the court. This commission 
selects from the petit jury hst 1,000 names, and 
in the middle of each month 36 names are drawn 
by the county clerk as above for the following 
month. 

The trial jury, often called petit jury (from 
French petit, small), is drawn for each case from 
lists made up once in 3 years by the supervisor, 
town-clerk, and assessors of the several towns, 
and deposited in a box in the county clerk's office, 
as in case of the grand jury. The county clerk 
draws as above 36 names for each term of court, 
and these serve for both the county and the 
supreme court. 

For each case the clerk in presence of the 
court draws out names until 12 satisfactory per- 
sons are obtained. 

A justice of the supreme court may order the 
drawing of an additional number of jurors, not 
to exceed 24 ; and at a trial term of either su- 
preme or county court the court may order the 
clerk to draw and the sheriff to notify any num- 
ber of additional trial jurors the court may think 
necessary. 

In some counties a commisioner of jurors re- 
ceives the lists of persons qualified to serve as 
jurors prepared by the supervisors, assessors, and 
town clerks of the towns and cities of the county; 
examines the names as to qualification; writes 



84 COUNTY COURT OFFICERS 

certificates of those entitled to exemption ; makes 
an alphabetical list of those qualified; files the 
same in his ofiice and in that of the county 
clerk, and deposits in the jury box slips with the 
names written upon them. From this box are 
drawn the names of the trial and grand jurors 
for the courts of record, and sometimes fists are 
furnished for lower courts. 

On or before Dec. 1 he must return to the 
county clerk for fifing certified copies of the lists 
prepared by him of the persons liable to serve as 
trial jurors for the ensuing jury year. He may 
from time to time strike off the names of a per- 
son found by him to be unfit or disqualified. ^ 

In counties of 150,000 to 300,000 he is ap- 
pointed by the justices of the supreme court and 
the county judge ; and in counties except Onon- 
daga containing a city of not less than 60,000 
or more than 120,000, by the county judge, sur- 
rogate, and county clerk. New York county 
has a special law. ^ 

A struck jury is sometimes ordered by the court 
when the case is intricate or it appears that an 
impartial trial could not be had by the ordinary 
jury. In this case the county clerk selects from 
the jury fist 48 names as likely to be impartial, 
after which the party who obtained the order 
strikes one name from the fist and the opposing 

1 J73;1901, 602:1901. 



THE TRIAL JURY 85 

party another until only 24 names are left. 
These 24 are summoned and the jury drawn 
from them as before. 

Unanimous agreement of the 12 jurors is re- 
quired in every case. If they agree the verdict 
is reported by the foreman. If they cannot 
agree, they are discharged and the case must be 
tried over or withdrawn. 

It is the custom in New York to keep a jury 
locked up till it reports. This puts it in the 
power of an obstinate juryman to compel his 11 
associates to remain in confinement till the court 
chooses to discharge them, and has sometimes 
enabled him to bring the other 11 around to his 
side. 

In certain cases the judge has the power to set 
the verdict aside and order a new trial, but this 
entails expense and delay, and sometimes results 
in the release of a prisoner undoubtedly guilty. 

The qualifications of a juror are to be (1) a 
male citizen of the county ; 

(2) between 21 and TO years old; 

(3) assessed for personal property to the 
amount of $250, or owner of real estate to the 
value of $150, or husband of a woman who is 
the owner of real estate belonging to her in her 
own right ; 

(4) in possession of his natural faculties, and 
not infirm or decrepit ; 



86 COUNTY COURT OFFICERS 

(5) of fair character, approved integrity, and 
sound judgment, and well informed. 

Yet the present method of selecting jurors in 
New York tends to discourage and even to ex- 
clude men of intelligence, one of the questions 
asked being whether the juror has read in the 
newspapers of the case to be tried, and whether 
he has formed an opinion. Hence few of the 
men whose judgment would be most trustworthy 
desire to serve on a trial jury, and those who 
accept the duty without trying to shirk it often 
do it at considerable sacrifice as a duty they owe 
as citizens. 

United States circuit and district courts (see 
page 278) draw both grand and trial juries from 
the jury hsts of the county where the case is 
tried. 

Persons over 60 years old may claim exemp- 
tion from sitting on juries, as also may post- 
masters, clergymen, physicians, teachers, editors 
and reporters on daily journals, members of fire 
companies or national guards, pohcemen, loco- 
motive engineers, and some others. 

The proceedings in county court are conducted 
hke those in the supreme court (see page 264). 



CHAPTEE IX 

THE VILLAGE 

The town and county government already out- 
lined has proved satisfactory for rural commu- 
nities. But when a large number of people live 
closely together, as in villages, new necessities 
arise. There must be adequate sewerage, and 
this usually requires an artificial water supply; 
the streets must be lit at night, and patrolled 
by regular policemen ; there must be apparatus to 
check fires, etc. All these things are expensive, 
and require skilled supervision. The rest of the 
town can hardly be asked to tax itself at town- 
meeting for expenditure by which the small por- 
tion of the town is benefited. Hence when a 
village becomes of considerable size, it asks to be 
incorporated (from Latin in and corporare, to 
form into a body) ; and gets from the legislature 
a charter (from Latin charta, a paper, something 
written and hence definite). ^ 

Sometimes a portion of a town is put under a 
special law with practically village privileges, as 
'' the area or territory known as Sylvan Beach ^ '. ^ 

The village (from Latin vicus (see page 23), 
while a part of the town and with the town a 

1 B i.624. 2 813:1896; 361 :1901. 

(87) 



88 * THE VILLAGE 

part of the county, has if thus incorporated some 
special functious. The government becomes 
municipal (from Latin munia, official duties, and 
capere, to take care of), ^ to a considerable degree 
self -governed. The inhabitants pay their share 
of the town and county taxes, but they levy 
further taxes upon themselves for village pur- 
poses. They make use of the county court and 
its officers, but frequently have a special court 
to take the place of the town justices court. 

In New York to be incorporated a village must 
be an entire town or a territory not exceeding one 
square mile, not including part of a city or village, 
and must have a population of not less than 200. ^ 

If 25 adult freeholders residing in the territory 
dehver to the supervisor a proposition to form a 
village signed by the persons proposing such in- 
corporation and depositing the sum of |50, 
within 10 days the supervisor must post in 5 
public places in the territory, and twice in the 
newspaper pubhshed therein, a notice that the 
proposition has been received, and that on a 
given day, not less than 10 nor more than 20 
days after such notice, a hearing shall be had. 
After such hearing the supervisor determines 
whether the proposition complies with the law, 
and if so orders an election to decide for or 
against incorporation. 

1 See pa^e 97. ^ 541399^ 



INCORPORATION 89 

If the vote is not to incorporate, the fees and 
expenses of the election are taken from the $50, 
and the remainder returned to those making it. 

New York has 4 classes of villages. An enum- 
eration of the inhabitants is taken .under direc- 
tion of the board of trustees in the month of 
January, 1902, and each fourth year thereafter. 
On the basis of this enumeration the villages are 
divided into four classes : the 1st class containing 
a population of 5,000 or more; 2d class 3,000 to 
5,000; 3d' class 1,000 to 3,000; 4th class less 
than 1,000. 

For list of the 164 largest villages see page 570. 

The qualifications for a voter are in addition to 
those for voting at tov^n-meeting (see page 32), 
(1) that he has been a resident of the village for 
30 days; and (2) for voting upon propositions 
to raise money, that he be the owner or husband 
of the owner of property in the village assessed 
upon the last assessment roll. ^ 

The election's held on the 3d Tuesday of March. 
The terms of office are all 1 year, except that of 
the trustees, which is 2 years, that of the asses- 
sors, which is 3 years, and that of the police jus- 
tice, which is 4 years. 

The following officers are elected by the people. 

The terms of office begin at noon on the first 
Monday after the annual election, except in case 

1009:1901, 



90 VILLAGE ELECTED OFFICERS 

of the police justice, whose term begins on Jan. 
1 succeeding his election. 

The president is the executive officer and the 
head of the police force. He has no salary. 

The trustees (in cities of the 4th class 2 ; of 
the 3d class, 2 or 4 ; of the second class 2 to 6 ; 
of the 4th class, 2 to 8) are elected at large, that 
is from the city as a whole ; but a village of the 
1st class may by vote at a special election decide 
to elect trustees by wards (see page 98). 

The board of trustees is made up of the presi- 
dent of the village and the elected trustees. It 
has the management and control of the finances 
and property of the village except such as is 
under the protection of the board of health or 
boards of commissioners. 

It may borrow money temporarily; fix the 
bonds of treasurer, collector, police justice, 
street commissioner, and such other officers as 
it requires to give bonds; establish fire limits, 
appoint pohcemen, designate an official paper; 
must cause a map of the village to be made and 
kept on file ; may give names to the streets, em- 
ploy an attorney, establish and maintain a village 
clock and scales, construct drains, establish and 
maintain a water supply, provide for lighting 
the streets, establish a scale of licenses, limit the 
speed of railway trains, etc. It is restricted hke 
cities as to amount of expenditure (see page 100). 



TRUSTEES; TREASURER; COLLECTOR 91 

Unless the village votes not to impose a poll 
tax (see page 159), all men between the ages of 21 
and TO residing in the village are liable to an 
annual poll tax of one dollar, except sailors and 
soldiers who have lost a leg, exempt firemen, 
active members of the fire department, clergy- 
men, paupers, idiots, and lunatics. 

The annual meeting of the board is held at 7 
o'clock on the Monday evening following the 
annual election. Special meetings may be called 
by the president, or by any two trustees by 
written notice. 

Trustees have no salary except when acting as 
inspectors of election or as assessors. 

Upon petition of 25 electors 3 assessors may 
be elected at the annual meeting. Otherwise 
the trustees act as assessors. In villages of the 
1st or 2d class the board of trustees may direct 
that assessors be elected. 

The treasurer is the chief fiscal officer. He 
receives the money belonging to the village and 
pays it out upon orders signed by the president 
and countersigned by the clerk. 

In a village of the 1st or 2d class by vote of 
the people this office may be fiUed by appoint- 
ment of the board of trustees. 

The collector has duties similar to those of the 
town collector (see page 39). A village of the 
1st class may vote not to have a collector. 



92 VILLAGE APPOINTED OFFICERS 

The police justice has substantially the duties 
of a justice of the peace (see page 36). Villages 
may establish or may discontinue this office. 

The following officers are appointed by the 
board of trustees. 

The board of trustees also fills all vacancies 
in the offices already mentioned. 

The clerk has the custody of the corporate seal, 
and of the books, records, and papers of the vil- 
lage ; notifies all officers elected of their election ; 
acts as clerk of the board of trustees and of each 
board of village officers. He keeps a record of 
their proceedings and an account of all orders 
drawn on the treasurer of the village. 

This office may be made elective by vote of 
the village. A village of the 1st or 2d class may 
have a deputy clerk. Women are eligible to 
either ofiice. 

The street commissioner has charge of the 
construction, improvement, and repairs of the 
public grounds, squares, parks, streets, culverts, 
wells, etc. He is ex-ofificio a member of the 
police department. 

This office may by vote of the village be made 
elective. 

A village engineer, may be appointed if so 
voted by the village. 

Policemen preserve order and arrest offenders 
against the law. 



POLICE JUJ^TICE; MUNICIPAL BOARDS 93 

A board of health of not fewer than 3 or more 
than 7 has the powers and duties estabhshed by 
the pubHc health law (see page 205). 

A municipal board may be established with 
the powers of boards of fire, water, light, sew- 
erage, or cemetery commissioners; or these 
separate boards may be established, with duties 
corresponding with their names. 

In a village of the 1st class, boards of com- 
missioners or the municipal board may be com- 
posed of 3 or 5 members, but in other villages 
such boards must consist of 3 members. The 
term of office is 3 or 5 years, according to the 
number of members. Such existing boards may 
be consolidated or abolished by adopting a propo- 
sition therefor at election. 

None of these officers have salaries. 

The board of education usually has the powers 
of the board of education in union schools, but 
in the larger villages sometimes has more or less 
of the extendeli powers given to boards of edu- 
cation in cities (see page 107). 

In villages of only one election district (con- 
taining not more than 800 quahfied voters), the 
trustees and clerk act as inspectors; but in vil- 
lages of more than 800 inhabitants the trustees 
appoint 2 inspectors of election for each election 
district, of different parties (see page 48). 



94 THE VILLAGE 

They may also appoint for each district a poll 
clerk and a ballot clerk. It is to be noted that 
the trustees have the power to make ordinances, 
corresponding with the town by-laws. 

Eligibility. — The president, trustees, municipal 
board, and fire, water, Hght, sewer, and ceme- 
tery commissioners must at time of election and 
during office be owners of property assessed 
upon the last preceding assessment roll of the 
village. This is not required of the boai"d of 
health. 

A person may not hold at the same time any 
two village offices except those of collector and 
constable, or water and light commissoner. 

We have seen that these multiplied officers 
are made necessary by new conditions arising 
from a closer population. As the village grows 
larger and the population still closer, it approaches 
the indefinite line between the village and the 
city. What are the advantages the large village 
would gain in becoming a city ? 

The principal difference between the govern- 
ment of a village and that of a city is that in 
the former the amount of taxes to be levied is 
fixed by the people, while in the latter it is fixed 
by the common council, corresponding with the 
village board of trustees. It is manifest that in 
the greater New York it would be impossible for 
the voters to get together to vote on propositions 



TOWN, VILLAGE, CITY COMPARED 



95 



to raise money ; even in places not too large for 
this it is much easier to carry appropriations for 
improvements through a common council than 
through a village meeting. So in general city 
government means more latitude of expenditure 
and more rapid improvements. Bryce says: 
^' The motive for passing from town government 
to city government in general has been the same 
everywhere — to acquire a certain readiness of 
action, and to make more available the credit of 
the community in order to provide adequately 
for its own growth. "^ 

The principal differences in the powers of the 
town, the village, and the city, with the more 
important of the corresponding offiers,. are given 
below. 



poicer town 

taxation people 
by-law 1 people 
ordinance ) 


milage 

people 
board 


city 

council 
council 


officers supervisor 
board 


president 
board 


mayor 
council 


constables 
collector 


police 
treasurer* 


police 
treasurer 


justice of 
peace 


police jus- 
tice* 


poHce jus- 
tice 



1 B i.624. 

*May retain the same name and duties as town officers. 



CHAPTER X 

THE CITY 

As the feudal lords of England spread out their 
power over the towns, the more thickly popu- 
lated villages built walls to preserve their hber- 
ties, and were called boroughs (from the Anglo- 
Saxon beorgan, to defend, a place strongly de- 
fended). By annexing outlying townships these 
boroughs sometimes grew as large as a shire, 
and had their own sheriff and what corresponded 
with a county court. The voting inhabitants 
were called burgesses. Freeman says that the 
borough '^ was simply several townships perched 
tightly together; a hundred smaller in extent 
and thicker in population than other hundreds. ' ' 

^^ The meaning of the. word ' borough ' has 
undergone many changes. It seems at first to 
have denoted a walled town or city, but it was 
soon applied especially to such of them as pos- 
sessed some kind of organization for the trans- 
action of the local business. At a later period 
the term implied the right to be represented in 
parliament. The term ' municipal borough ' 
was introduced when the larger corporations 
were reformed in 1835, to denote a place to which 

(96) 



HISTORY 9T 

the new powers of self-government was applied, 
whether such a place were a parliamentary 
borough or not. It has now became nearly 
equivalent to '^municipality', * * * an organ- 
ization for the self-government of a city or town 
by means of a corporation empowered generally 
to maintain peace and order, and to manage the 
affairs of its inhabitants. " ^ 

A city (from Latin civitas, a city) was in Eng- 
land an incorporated town that was or had been 
the seat of a bishop. Thus while the voters 
of Oxford were called citizens, the voters of 
Cambridge were called burgesses, because Cam- 
bridge had never been the seat of a bishop. In 
the United States there is no such distinction, 
and city is the word usually employed. 

The word borough has been introduced in 
some states, as in Pennsylvania, where it is inter- 
mediate between a village and a city. It is used 
of the divisions of the Greater New York (see 
page 110). ^ 

In the development of the English borough or 
city a prominent part was played by the guilds 
(from Anglo-Saxon gild, tribute, a society where 
payment was made by members), brotherhoods of 
tradesmen and artisans who united to protect 
themselves and their property against the over- 
bearing lords and their lawless retainers. Event- 

lEnc. Brit, xvii.27. See page 88. 



98 THE CITY 

ually the various guilds of carpenters, saddlers, 
grocers, butchers, etc., formed a united brother- 
hood and got control of the city government. 
Only members of guilds were allowed the privi- 
leges of citizenship ; ^ the aldermen (from Anglo- 
Saxon ealdor, an elder) or heads of the various 
guilds became the head men of the various wards 
and met in the guild hall, which presently be- 
came the city hall, sharing the executive power 
with the common council, elected at large by the 
citizens, as our senate and house of representa- 
tives share the powers of congress. In Ameri- 
can cities these two bodies are often combined, 
the aldermen form-ing, usually with the mayor, 
the common council, ^ which is the legislative body 
of the city, corresponding with the board of trus- 
tees of the village, but with enormously greater 
powers, having the right to appropriate money 
which in vOlages is left to popular vote (see page 
89). 

The aldermen are usually elected one from 
each ward, partly on the theory that each will 
look after the interests of his own section, and 
partly because the party which is in a minority 
in the city at large may have a majority in cer- 
tain wards and thus secure representation. But 
the feeling is growing, on the one hand that 
aldermen should represent the whole city and not 

1 Enc. Brit, iv.63. ^ b i.596. 



COMMON COUNCIL 99 

parts of it, and on the other hand that city poh- 
tics should be strictly local and dissociated from 
national issues. If the man is for the office, 
not the office for the man, then the most capable 
men in the city should be chosen, without regard 
to the accidental circumstance of what wards 
they reside in. 

In some cities, including all the 2d class cities 
of New York, the president of the common 
council is elected from the city at large, as an 
additional number of the council. In these 
cities the president has a salary of $1,000, and 
the aldermen have |500 in cities of less than 100,- 
000, and 1750 in cities of more than 100,000. ^ 

'' The functions of city governments may be 
divided into three groups — (a) those which are 
delegated by the state out of its general coercive 
and administrative powers, including the police 
power, the granting of licenses, the execution 
of laws relating to adulteration and explosives ; 
(6) those which though done under general laws 
are properly matters of local charge and subject 
to local regulation, such as education and the 
care of the poor ; and (c) those which are not so 
much of a political as of a purely business order, 
such as the paving and cleansing of streets, the 
maintenance of proper drains, the provision of 
water and light. In respect to the first, and to 

1534:1901. 

L.ofC. 



100 THE CITY 

some extent of the second of these groups, the 
city may be properly deemed a pohtical entity ; 
in respect of the third it is rather to be compared 
to a business corporation or company, in which 
the tax-payers are shareholders, doing, through 
the agency of the city officers, things which each 
might do for himself though with more cost and 
trouble. All three sets of functions are dealt 
with by American legislation in the same way, 
and are alike given to officials and a legislature 
elected by persons of whom a large part pay no 
direct taxes. " ^ 

The importance of electing honest and com- 
petent men to the Common council can not be 
over-estimated; yet it often happens that men 
whom no one would trust privately with hun- 
dreds of dollars find themselves elected to the 
council and in control of millions. Their powers 
are somewhat limited by the provisions of the 
constitution already quoted (see page 32), with 
the further restrictions that the total indebted- 
ness must never exceed 10 ^ of the assessed 
valuation of real estate, except for bonds to 
secure water-supply; and that the annual tax 
shall not exceed 2 ^ of the assessed valuation 
(250). But their authority is still enormous. 

The reasons that make a government of its 
own important for the village make it still more 

1 B i. 599. 2 B I 503^ 618. 



ELECTIONS 101 

necessary in the larger and more thickly popu- 
lated city. The interests involved are enormous, 
and the character of the administration is of 
momentous importance to every citizen. Yet at 
present the government of large cities is exceed- 
ingly unsatisfactory, because the control is in the 
hands of professional politicians, largely through 
the neglect of citizens to exercise their right to 
vote, especially at the primaries ^ (see page 176). 

In New York cities are incorporated by the 
legislature (275). There are no restrictions as to 
the number of inhabitants. In 1901 Oneida 
was incorporated with a population of Y,738, 
though there Vere in the state at the time 9 vil- 
lages with a larger population, four of them 
with more than 10,000 (see table, page 570). 
Whenever a decided majority of the voters de- 
sire it and there is no objection in the county 
(see page 63) the legislature will usually grant a 
city charter. 

For the pur|)ose of making general legislation 
practicable. New York cities are divided into 3 
classes (276), the 1st class including those with 
250,000 or more inhabitants; the 2d those hav- 
ing from 50,000 to 250,000; and the 3d class the 
rest. 2 For classified list of cities in New York 
see page 572. 

Election in cities of the 1st and 2d classes oc- 



iBi.632. 2Brycei.581. 



102 THE CITY 

curs at the general state election in the odd- 
numbered years, so as to dissociate local from 
state and national elections. ^ The term of office 
is 2 years. 

There is great variety in the number and in 
the naming of city officers ; the list of the offi- 
cials and employes of the Greater New York 
published Jan. 31, 1901, contains 399 newspaper 
pages, 2 yet even this is said to be incomplete, 
and it is estimated that the city has 50,000 em- 
ployes to whom it pays 50 millions a year in sala- 
ries. Syracuse paid in 1900 ^902,079.61 in sala- 
ries, besides $205,467.43 for wages to day laborers. 
The following are the most important officers. 

The mayor (from Latin major, greater) is 
the principal executive officer and the head of 
the city government, corresponding with the 
president of the village. The modern tendency 
is to increase his powers, giving him a longer 
term of office, and entrusting to him the ap- 
pointment of many of the other city officers. 

Our forefathers were afraid of such one-man 
power as had been exerted by the governors of 
the colonies, and shrank from giving extensive 
power to any individual. But experience has 
shown that when city charters divide up the 
power they divide up also the responsibihty, and 
when evil results, each branch of the govern- 

IB i. 598. 2 The City Record, Jan. 31, 1901. 



THE MAYOR 103 

ment throws the blame upon the rest. ^ Few 
mayors dare face pubhc opinion in the appoint- 
ment of men as unworthy as may easily slip 
through the machinery of a popular election, 
and a mayor who knows that all the praise or 
all the blame will be his, has every incentive to 
make his administration an honorable one. 
Moreover, the greater the responsibility, the 
greater care there will be in electing to the office ; 
so the tendency to increase the mayor's powers 
seems altogether healthful. ^ 

Over all the acts and ordinances of the com- 
mon council, the mayor has the right of veto 
(Latin, I forbid), and a measure so vetoed can 
not become a law unless repassed by the com- 
mon council by a two- thirds vote. Much un- 
wise legislation is prevented in this way, even 
when the political opposition to the mayor in the 
common council is much larger than the two- 
thirds required to pass the bill over his veto ; for 
the veto calls public attention to the evils of the 
bill, and often creates public sentiment against 
it which the council does not dare oppose. ^ 

In New York the attempt has been made to 
give him also a sort of veto power over legisla- 
tion. When a bill relating to a city has been 
passed by the legislature, the house in which it 
originated must at once transmit a certified copy 

1 B i.614. 2 B i.603, 627 ; Hadley, 80. ^ g iQ<i9. 



104 THE CITY 

to the mayor of the city, to be returned within 
15 days with statement whether or not the city 
accepts it. If accepted it goes Hke other bills to 
the governor. If returned marked not accepted 
or if not returned, it must again go before the 
legislature, and be passed by both houses before 
going to the governor (276-8). Compare page 242. 

It rests with him, as the chief executive office, 
to provide for the pubHc peace, to quell riots, 
and, if necessary, to call out the mihtia. He 
often exerts, in practice, some discretion as to 
the enforcement of the law; he may, for in- 
stance, put in force Sunday closing acts or regu- 
lations, or omit to do so. ^ 

In the smaller cities the mayor usually serves 
without pay. In the larger cities he sometimes 
has a considerable salary, as $4,000 in Syracuse 
and 115,000 in New York. 

The city attorney, or corporation counsel, acts as 
legal adviser to the mayor, common council, and 
other officers, and prosecutes and defends suits 
in which the city is interested. 

The treasurer and assessors have duties similar 
to those in villages. 

The assessment roUs mu^t be open Sept. 1-15 
for inspection at the office of the city clerk, after 
ivhich each is dehvered to the supervisors of 
the tax district embraced therein. ^ 



iBi.596. 2 358:1901. 



MUNICIPAL COURTS 105 

In some cities there is a comptroller (sometimes 
spelled controller^ from French coiitrole, a counter 
register), who is the financial guardian of the 
city. He is a member of the board of estimate 
and apportionment, where there is one, and his 
approval is required before the payment of bills 
against the city. 

The police justice has corresponding powers 
and duties with the police justice of the village 
(see page 92). Some cities instead retain justices 
of the peace; some have a city judge and a 
chamberlaiu (in New York he is a fiscal officer, 
seepage 112); some make of the police justice 
and two or more of the aldermen a board of 
magistrates. 

There is sometimes a municipal court, for the 
trial of civil cases alone. 

Whatever the name of the court, it belongs 
to those named in the constitution (224) as '^ in- 
ferior local courts of civil and criminal jurisdic- 
tion ' ' ; hence it is not a court of record (that is, 
one whose decisions are kept and used as prece- 
dents), and may not have a greater jurisdiction 
than the county court. 

A probation officer is appointed by the justices 
of criminal courts to inquire into the antecedents, 
character, and offence of persons over the age 
of 16 arrested for a crime within the jurisdiction 
of the court. The court may place the criminal 



106 THE CITY 

on probation under charge of the probatioii offi- 
cer, suspending sentence. ^ 

The city clerk is sometimes elected and some- 
times appointed. His duties are essentially those 
of the village clerk (see page 92). 

There is sometimes a street commissioner, per- 
haps caUed the superintendent of street repairs ; 
and in the larger cities there are often separate 
superintendents of street-cleaning, of sidewalks, 
etc. There may be a general commissioner of 
public works. 

A bureau of engineering may take the place of 
the village engineer (see page 92), though often 
there is a city engineer. 

Besides a chief of police and various assistants, 
there may be a police commission, or a commis- 
sioner of public safety in general charge of police 
matters. 

Sometimes it is proposed that this officer or 
commission be appointed by the governor, the 
legislature not feehng confidence in local city 
control. An effort of this kind in the New York 
legislature of 1901 was unsuccessful. 

The board of health has power similar to that 
in villages (see page 93), but somewhat more 
extended. 

There could hardly be a municipal board (see 
page 93) in cities, as the duties of the various 

1372:1901. 



VARIOUS OFFICERS lOY 

bureaus are too extended. These differ in the 
various cities, but often include a bureau of pub- 
lic buildings aud grounds, a water bureau, etc. 

In cities of the 2d class there is a board of 
contract and supply which purchases all the sup- 
plies for the city. 

There is sometimes a commissioner of charities 
and correction. 

A sealer of weights and measures is required in 
2d class cities. He is appointed by the mayor 
for 2 years, and is removable by the mayor. He 
has the duties of the town sealer of weights and 
measures, supervises the weighing of coal, etc. ^ 

The board of education has in general the 
powers of the boards of education of union 
schools (see page 57), but usage differs on the 
following points. 

(1) The members may be elected; or they may 
be appointed, usually by the mayor. The latter 
method usually secures the best results. The 
board of education of New York city has al- 
ways been appointive, and it has always been 
free from scandal ; even when the Tweed ring 
was robbing New York city, J. Gr. Holland, the 
author, was president of the board of education. 

Several cities of New York have a board of 7 
members, each appointed for 7 years by the 

1479:1901. 



108 THE CITY 

major. This seems to be thus far the best sys- 
tem devised for the control of schools. 

(2) When elected, the members may be elected 
'' at large ", that is from the whole city; or by 
wards. The former method is in every way 
preferable (see page 98). 

(3) The board of education sometimes has 
power to fix tie amount to be raised by tax, but 
usually must refer it to the common council. 
There seems no good reason for this. The board 
of education is usually made up of men quite as 
competent and trustworthy as the aldermen. 

(4) The board of education sometimes retains 
all its powers, making the superintendent merely 
a clerk to carry out its enactments. The tend- 
ency is however greatly to extend the superin- 
tendent's responsibility, empowering him espe- 
cially to select, transfer, and discharge teachers. 

{5^ As a rule members of boards of education 
have no pay, but in Eochester they receive a 
salary of' $1,200. 

In cities and in villages of 5,000 inhabitants 
teachers to be employed in grades below the high 
school must either (1) hold (a) a state certificate, 
(b) a normal diploma, or (c) a college- graduate 
certificate ; or (2) be a graduate of an approved 
high school (see page 322) and of a training school 
or class (see page 313); or (3) have 3 years ex- 
perience and a valid certificate (see page 55). 



THE BOARD OF EDUCATION" 100 

For high schools, the teacher must either have 
one of the quahfications in (1) above, or {d) a 
uniform 1st grade certificate ; or (2) be a grad- 
uate of an approved college, with (a) a uniform 
certificate of any grade, or (b) graduation from 
a pedagogical course approved by the superin- 
tendent (see page 314). 

In large cities much of the work of boards of 
education, as of boards of aldermen, is done by 
committees. The dangers of this are spoken of 
on page 248. 

There is considerable limitation as to the power 
of appointment and removal of city officers 
through the regulations of the civil service (see 
page 388). 



CHAPTER XI 

THE GREATER NEW YORK 

By a law passed in 1897 the cities of New 
York, Brooklyn, and Long Island city, with all 
of Kings and Richmond and part of Queens 
counties (see map, page 574), were made one 
great city, called New York, but usually referred 
to as The Greater New York. By the census of 
1900 this city had a population of nearly 3 J mil- 
lions, making it second only to that of London, 
and nearly half that of the entire state. It pays 
f of the state taxes, and elects f of the legislature. 
So enormous a municipality creates many new 
problems, and the charter as revised in 1901 ^ fills 
an entire volume of the statutes of that year. 

It is divided into 5 boroughs, electing each the 
number of assemblymen given in parentheses: 
Manhattan (33i), The Bronx (IJ), Brooklyn (21), 
Queens (2), and Richmond (1) (see map, page 574). 
As a rule each assembly district elects an alder- 
man, but in Manhattan the 21st, 23d, and 31st 
assembly districts have each 2 aldermen, and its 
half 34th district has an alderman, making, 37; 
the 35th district of the Bronx has 4, with 1 for 

1466:1901. 

(110) 



BOARD OF ALDERMEN 111 

its half of the 34:th, and 2 for Chester, the an- 
nexed district, in the 1st and 2d Westchester 
assembly districts, making 7 ; the 7th district of 
Brooklyn has 2 aldermen, making 22; Queens 
has 4, and Eichmond 3, making altogether a 
board of 73 aldermen. 

The aldermen are elected by the people for 2 
years at a salary of $1,000. Theeonly qualifica- 
tion required is that the candidate be a citizen of 
the United States and a resident of the ward. 
Heads of departments (see page 112) are entitled 
to a seat in the board of aldermen, and to a part 
in the discussion, but not to vote. They must 
attend when required to do so by the board. 

The president receives $5,000, and is acting 
mayor during the mayor's absence or disability. 

To prevent hasty action and to inform the 
public, ordinances that involve the spending of 
money, public improvements, or the granting 
of franchises, can be passed only by unanimous 
vote until at least 5 days after an abstract of the 
proposed measure has been published in The City 
Eecord, the official city newspaper. 

The board appoints the city clerk for 6 years, 
at a salary of $7,000, with the powers of a 
county clerk; and on recommendation of the 
board of estimate, which it may reduce, fixes 
thQ salaries of the other employes of the city 
except teachers and day laborers. 



112 THE GREATER NEW YORK 

The mayor, besides the usual duties of the 
office (see page 102), appoints^ the heads of 13 of 
the 15 departments of the city government, and 
may remove them. These departments are the 
following (§96): 

1, finance; 2, law; 3, police; 4, water supply, 
gas and electricity ; 5, street cleaning ; 6, bridges ; 
7, parks; 8, public charities; 9, correction; 10, 
fire; 11, docks and ferries; 12, taxes and assess- 
ments; 13, education; 14, health; 15, tenement 
houses. 

The mayor may be removed by the governor. 

To pass a measure over his veto (see page 103), 
a f vote is required, and in case the measure 
involves the expenditure of pubhc money, the 
creation of a debt, or the laying of an assess- 
ment, a I vote is required. EQs veto of a fran- 
chise is final. 

The comptroller, at the head of the department 
of finance, is elected by the people for 2 years, 
at a salary of $15,000. ^ He may be removed 
by the governor, like a sheriff (260). 

There is also a chamberlain appointed by the 
mayor at a salary of $12,000, who acts as county 
treasurer (see page 69), and performs correspond- 
ing duties for the city. 

The superintendent of schools, at the head of 
department of education is elected by the board 

1^18. ^ § 97. 



VARIOUS OFFICERS 113 

of education for 6 years, at a salary of $8,000. 
There are also 8 associate superintendents and 26 
district superintendents, appointed by the board 
of education. This board consists of 46 mem- 
bers, 22 from Manhattan, 4 from the Bronx, 14 
from Brooklyn, 4 from Queens, and 2 from Rich- 
mond, and members are appointed by the mayor 
for 5 years, to serve without pay. There is also 
in each district a district board, appointed by the 
president of the borough. Teachers are appointed 
by the board of superintendents from an eligible 
list furnished by the board of examiners, and are 
assigned to districts as vacancies occur. 

There is for each borough a president, elected 
by the people of the borough for 2 years, at a 
salary of $5,000 in Queens and Eichmond and 
$7,500 in the other boroughs. He has charge of 
the streets, sewers, bridges, and most of the pub- 
lic buildings ; and in Queens and Eichmond of 
the street cleaning. 

The 5 borough presidents, with the president 
of the board of aldermen, the comptroller, and 
the mayor, constitute the board of estimate and 
apportionment, which receives the estimates by 
the various departments of money needed for 
the coming year, makes up a statement of the 
amounts approved, and submits it to the board 
of aldermen. If approved by the board of alder- 
men, it becomes the legal amount to be raised. 



114 THE GREATER NEW YORK 

On this board the presidents of The Bronx 
Queens, and Eichmond have 1 vote each; the 
presidents of Manhattan and Brooklyn 2 votes 
each ; the mayor, the comptroller, and the presi- 
dent of the board of aldermen 3 votes each, 
making 16 votes altogether. 

The city is divided into 25 districts of local 
improvements, corresponding closely with the 20 
senate districts (see map, page 579), in each of 
which there is a local board, composed of the 
aldermen within the district, and presided over 
by the borough president. This board may open 
streets, establish parksj and construct tunnels 
and bridges, where part of the expense is borne 
by owners of adjoining property; but such plans 
must be approved by the borough president, and 
if the charge imposed on the city is $2,000, by 
the board of estimate and apportionment ; if it 
be $500,000, by the board of aldermen also. 

New York county has no county court, but 
instead divides its functions (see page Y6) be- 
tween a city court, with 7 judges, elected for 10 
years at a salary of $10,000, with jurisdiction 
over civil cases where the amount does not ex- 
ceed $2,000 ; and a court of general sessions, with 
a recorder, a city judge, and 3 justices of sessions, 
all elected for 14 years, at $12,000, which has 
jurisdiction over all crimes, including murder. 

There are two inferior courts in the Greater 



MUNICIPAL COURTS 115 

New York. The court of special sessions has 10 
judges appointed by the mayor for 10 years, 
with salaries of |9,000 for the 5 in the 1st divis- 
ion, Manhattan and the Bronx, and |6, 000 for 
the 5 in the 2d division, the rest of the city. To 
constitute the court 3 of the 5 judges must sit, 
and 2 must concur to make a decision. The 
jurisdiction of the court is over minor offences, 
such as misdemeanors, and others not dependent 
on indictment (see page 82). 

In Manhattan and the Bronx 12 city magistrates 
are appointed by the mayor for 10 years, with a 
salary of 17,000; in the rest of the city 15 are 
elected for terms of 6 years at salaries of $6, 000 
in Brooklyn and 15,000 in Queens and Eich- 
mond. In each division the magistrates consti- 
tute a board of magistrates, with 20 districts, in 
more of which a magistrate is in daily attend- 
ance to try petty offences and commit accused 
persons, performing the functions of a justice 
of the peace in Criminal cases (see page 30). 

The functions of a justice of the peace in civil 
cases are performed by the municipal court, which 
is held in each of the 23 districts by a justice 
elected by the voters of the district for 10 years 
at 15,000 in Queens and Eichmond and 16,000 
in the other boroughs. It has jurisdiction in 
civil suits where the amount involved does not 
exceed 1500, 



116 THE GREATER NEW YORK 

The difference in salaries of the correspond- 
ing officers in different boroughs is provided for 
in the law (§56): 

^' Salaries need not be uniform throughout the 
several boroughs, but may, in the discretion of 
the board of estimate and apportionment, be 
made to consist of two elements: First, remun- 
eration for work done, which shall be the same 
throughout all the boroughs for positions of like 
character ; second, an additional sum based upon 
an estimate of the prevaihng rentals and ex- 
penses of living in the borough where the ser- 
vices rendered are performed, and which may- 
vary in the several boroughs. ' ' 

Teachers, however, receive salaries uniform 
throughout the city. 

Bryce says there is no denying that the govern- 
ment of cities is the one conspicuous failure of 
the United States. The deficiencies of the na- 
tional government tell but little for evil on the 
welfare of the people. The faults of the state 
governments are insignificant compared with the 
extravagance, corruption, and mismanagement 
which mark the administrations of most of the 
great cities. ^ He says elsewhere that city gov- 
ernments begin to be bad when the population 
begins to exceed 100,000, and includes a large 
proportion of recent immigrants. ^ 

iBi.608. 2Bii.l58. 



THE LAW SUFFICIENT 117 

New York has held its share of bad govern- 
ment, but the election of 1901 showed that this 
was not due to the laws of the state or of the 
citj, for the control passed absolutely from the 
party that had held it into non-partisan control, 
under those who promised to give it an honest, 
business-like, and efficient administration. 

For tabulated list of principal city officers see 
page 3. 



CHAPTER XII 

THE STATE 

The town, the county, the village, the city 
have all been treated as parts of a greater whole. 
Each exercises certain powers, but the powers 
are all delegated from a higher authority, which 
may alter or extend or abridge these powers. 
We come now to this higher power, the sovereign 
state (from Latin status^ a standing). 

The sovereignty is in the state, that is in the 
people that constitute the state ; not in the per- 
sons who happen to be at any time the officers 
of the state. The state is, like the town, the 
county, the village, and the city, a commonwealth 
(a body poHtic united for common well-being) ; 
but it differs from them in having independent 
authority of its own — not delegated or subject 
to alteration by some authority above, but inher- 
ent, and defined by a constitution (from Latin con 
and statuere, something firmly established). The 
United States has been well called an indestruc- 
tible union of indestructible states ; and this in- 
destructibility depends largely upon the constitu- 
tions of the United States and of the several 
states, by which it is made secure. 

(118) 



WHAT A CONSTITUTION IS 119 

• 

The constitution of a country is the body of 
rules or laws which determine the form of its 
government, and the respective rights and duties 
of the government towards the citizens and of 
the citizens towards the government, ^ embodied 
in written documents, or imphed in the institu- 
tions and usages of the country. In the latter 
sense it might be said that every permanent 
government has a constitution, that is an under- 
stood method of working ; but its common use 
implies that the method of working is fixed, not 
dependent on arbitrary will of the ruler. An ab- 
solute monarchy is a government without a con- 
stitution; a limited rdonarchy, a government 
with a constitution. 

A constitution is the political law, established 
by the people as a body pohtic (see' page 28). It 
is the fundamental law, because it is the founda- 
tion of all other laws. It is an agreement be- 
tween the entire community and each of its mem- 
bers, establishing laws for the common good. 

When the Spaniards were trying to protect 
themselves against Queen Isabella by a constitu- 
tion, Gruizot said : ' ' The great use of a constitu- 
tion is to make good sovereigns out of bad men 
and women." 

England has always been a limited monarchy. 
The king has never been able to act alone, but 



B i,350. 



120 THE STATE 

• 

only in connection with a council. Under the 
Anglo-Saxon kings, an assembly of the wise 
men had power to impose taxes, and to raise 
troops, to direct church affairs, and to care for 
the state in general, while county courts admin- 
istered justice. 

The Norman kings made unjust exactions. 
Each king on coming to the throne granted a 
charter promising to respect ancient rights ; but 
none of these charters were carried out. 

The First Bulwark of English Liberty 

In 1215 the barons compelled King John to 
sign Magna charta (the great charter), establish- 
ing a fixed mode of administering justice, and 
promising every man accused the right of trial 
by jury. 

In the early part of the 13th century the kings, 
who found the nobles inclined to resist exactions, 
thought they could securte taxes more easily by 
enlarging the council; so they began to summon 
knights of the shire from the various counties, 
to be chosen by the smaller land-owners as repre- 
sentatives; and to invite some of the wealthy 
towns to send borough members to the assembly. 

During the reign of Edward III (1327-1377), 
the limiting body came to consist of three parts, 
(1) the barons and bishops; (2) the knights of 
the shire ; (3) the borough members. These last 
two united to form the house of commons, while 



HISTORY OF ENGLISH LIBERTY 121 

the first constituted the house of lords, and both 
together made up parliament. 

For a time the house of commons had little 
power except to assent to taxation; if it had 
new measures to propose it presented them to 
the king through its presiding officer, for this 
reason called the speaker. Presently it began to 
make its wishes into laws, and to present them 
to the king for his approval. 

Under Henry VII and Henry VIII the author- 
ity of the king became nearly absolute. If par- 
liament failed to authorize taxes the king raised 
them by illegal modes of taxation, and there was 
no security of person. Hallam says : ^ ^ A single 
suspicion in the dark bosom of Henry VII, a 
single cloud of wayward humor in his son, would 
have been sufficient to send the proudest peer of 
England to the dungeon and the scaffold. ' ' 

Under James I the house of commons secured 
the right to judge of the election of its own 
members, and refused to raise taxes unless griev- 
ances it complained of should be redressed. 

The Second Bulwark of English Liberty 

In 1628 it extorted from Charles I the Petition 
of right, granting (1) that no person should be 
compelled to pay a tax not levied by parliament ; 
(2) that no freeman should be imprisoned except 
by legal process ; (3) that soldiers should not be 



122 THE STATE 

quartered upon the people ; (i) that people should 
not be subjected to martial law. 

For 11 years Charles governed without a par- 
liament; and when in 1640 he summoned the 
LoiiJ? parliament, the majority were Puritans. 
It at once passed two laws and compc lied the 
king to sign them : (1) that it should not be dis- 
solved without its own consent; (2) abohshing 
the court of the star chamber, a body of judges 
wholly under the king's control. When parlia- 
ment further demanded the control of the army 
the king resisted, both parties took up arms, the 
king was defeated, and in 1649 he was tried and 
executed for treason. 

The house of commons then aboHshed the 
house of lords, and vested the supreme power in 
a council of 40 members. CromAvell dissolved 
the parliament by force, and got from its succes- 
sor the title of lord protector, ruling absolutely 
till his death in 1658. His son succeeded him, but 
had not his father's strength of character, and in 
1660 monarchy was restored under Charles II. 

The government was now reestabhshed on its 
old basis, and parhament was once more submis- 
sive to the king. James II tried to make the 
royal power as absolute as under the Tudors, 
claiming the right to set aside its acts, to inter- 
fere in the election of its members, and to repeal 
the habeas corpus act, passed under Charles II. 



the english constitution 123 

The Third Bulwark of English Liberty 

This exasperated the people, and James was 
compelled to fly from the country, his daughter 
Mary and her husband Wilham of Orange suc- 
ceeding to the throne. Parliament now passed 
the Bill of rights, declaring it illegal for the 
king to suspend the laws, or to levy money or 
keep a standing army without grant of parlia- 
ment. It declared the right of the people to 
petition the king; to bear arms in their own 
defence; to be exempt from excessive bail and 
fines, and from cruel and unusual punishments. 
It declared that parliaments should assemble 
often, that the election of members should be 
free, and that there should be freedom of speech 
in debate. 

This practically fixed the English constitution 
in the form it bears to-day. 

So far as it is embodied in documents, the 
English constitution consists mainly of Magna 
Hcharta, the Petition of rights, the abeas cor- 
pus act, and the Bill of rights. In this sense 
the Magna charta might be called the first writ- 
ten constitution. But these have only the force 
of statutes. Any one of them may be repealed 
by parliament. Bryce says (i.237, 350; ii.275): 

" What are called in England constitutional 
statutes, such as Magna charta, the Bill of 
rights, the Act of settlement, the Acts of union 



V24: THE STATE 

with Scotland and Ireland, are merely ordinary 
laws, which could be repealed by parHament at 
any moment in exactly the same way as it can 
repeal a highway act or lower the duty on tobac- 
co. The habit has grown up of talking of the 
British constitution as if it were a fixed and 
definite thing. But there is in England no such 
thing as a constitution apart from the rest of 
the law; there is merely a mass of law, consist- 
ing partly of statutes and partly of decided cases 
and accepted usages, in conformity with which 
the government of the country is carried on from 
day to day, but which is being constantly modi- 
fied by fresh statutes and cases. ' ' 

" In England the ancient constitution is al- 
ways under repair. ' ' 

'*A constitution of this kind, capable at any 
moment of being bent or turned, expanded or 
contracted, may properly be called a flexible 
constitution. ' ' 

Fisher says : ^ 

'' Parliament is thus a convention to amend 
the constitution, duly appointed, always in exist- 
ence, and always competent to entertain pro- 
posals for needed alterations, with full authority 
to decide them. ^ ^ * It is a remarkable fact 
that, in conservative England, so steadfast in 
adhering to ancient usage, the power to make 

1 Trial of the constitution, p. 30. 



CHARTERS 125 

changes is always ready to act^ without question 
or form or delay, and the organic law is thus 
pliable and responsive to the wishes of the people ; 
whilst in democratic America, innovation is 
guarded against with such jealous care that it is 
doubtful whether the means provided by law for 
making needed changes can ever be employed. ' ' 

Bryce says (ii.258): ''In England, parhament 
is the nation, not merely by a legal fiction, but 
because the nation looks to parhament only, 
having neither reserved any authority to itself 
nor bestowed any elsewhere. In America, con- 
gress is not the nation, and does not claim to be 
so." 

In America constitutions have always taken 
the written form. They are derived from the 
charters kings had been led to grant. 

It is said that the basis of charters was the 
address of William the Conqueror to the author- 
ities of London, in which he said: ''I will that 
every child be his father's heir, after his father's 
day ; and I will not endure that any man offer 
any wrong to you." This was followed by 
written guarantees known as the charters of 
English towns, granting rights and privileges, 
and often prescribing a form of government. 
Bryce (i.414, 448) traces the history of charters 
back through the trade guilds of the middle ages 
to the days of imperial Rome. 



12(> THE STATE 

These were highly prized, and the American 
colonies learned to depend for a guarantee of 
their rights upon written charters. Plymouth 
was a mere voluntary association until in 1691 
it became a part of Massachusetts under a char- 
ter granted by WiUiam IIT, in place of the char- 
ter revoked by James II. ^ 

The charter granted in 1606 by King James to 
the London and Plymouth companies contained 
a guarantee, '' forever irrevocable, unless by 
consent of both parties, that became the great 
bulwark of colonial rights and liberties in the 
contests of a later day." It said: 

''Also, we do, for us, our heirs, and successors, 
declare, by these presents, that all and every the 
persons being our subjects, which shall dwell 
and inhabit within every and any of the said 
several colonies and plantations, and every of 
their children and posterity, which shall happen 
to be born within any of the limits and precincts 
of the said colonies and plantations, thereof, 
shall have and enjoy all liberties, franchises and 
immunities of free denizens and natural subjects 
within any of our other dominions, to all intents 
and purposes, as if they had been abiding and 
born within this our realm of England, or in 
any other of our dominions." 

Two of the original 13 colonies, Ehode Island 

iBi.458. 



THE FIRST AMERICAN CONSTITUTION 127 

and Connecticut, after beginning as unauthor- 
ized associations obtained direct charters. These 
charters permitted the colonies to choose their 
own governor, to elect their own legislature, 
and to estabhsh courts of justice, with only the 
restriction that no law should be passed that was 
contrary to the laws of England. These char- 
ters proved so satisfactory that Connecticut was 
governed by hers, instead of by a constitution, 
till 1818, and Rhode Island tiU 1842. i 

It was because George III assumed to tax 
the colonists in violation of their charters and 
of what they believed to be the Enghsh consti- 
tution that the revolutionary war broke out. 

In 1639 the free planters of Connecticut had 
met at Hartford and adopted a constitution, the 
first on record, and many of its features were 
continued in the charter granted in 1662. In 
1671 the New Plymouth colony pubhshed a re- 
vision of the laws under the title, " General 
Laws and Liberties of New Plymouth Colony", 
which had many of the features of the modern 
constitution. In 1669 John Locke prepared his 
'"' grand model", "The fundamental constitu- 
tions of South Carolina", which proved imprac- 
ticable and in 1693 was set aside. ^ 

When the revolution had made the American 
colonies independent of England, the power 



B i.4l6. 2 B i_445_ 



I OS THE STATE 

rested absolutely In the hands of the people, ^ and 
the continental congress advised the colonial 
governments to form permanent governments. 
Accordingly each colony, except Connecticut and 
Rhode Island, adopted a written constitution, or- 
daining the methods under v^hich it v^as to 
govern itself. 

'' A state constitution is not only independent 
of the central national government (save in cer- 
tain points already specified), it is also the funda- 
mental organic law of the state itself. The state 
exists as a commonwealth by virtue of its con- 
stitution, and all state authorities, legislative, 
executive, and judicial, are the creatures of, and 
subject to, the state constitution. " ^ 

" The people and the government must be 
clearly distinguished. The people make the con- 
stitution and the government follows it."^ 

These constitutions were based largely upon the 
charters. * All of them provided for the three 
departments of government, executive, legisla- 
tive, and judicial. Usually the colonial assembly 
became the house of representatives; a new 
upper house was elected in place of the governor 
and his council, who had formed the senate ; and 
a judiciary was created. All contain a " bill of 
rights" (see page 136); and various minor pro- 
visions define the boundaries of the state, pre- 

iBi.429, 400. 2^1.420. ^BiMS. *Bi.414. 



FEATURES OF AMERICAN CONSTITUTIONS 129 

scribe qualifications of voters, and establish 
requirements for schools, corporations, etc. The 
first New York constitution quoted the act of 
the continental congress recommending the col- 
onies to form governments of their own, and 
the entire Declaration of Independence. 

Massachusetts still lives under her constitution 
of 1780, which has indeed been amended at var- 
ious dates, yet not to such an extent as to efface 
its original features. ^ 

Bryce says (i.299): 

^' All the main features of American govern- 
ment may be deduced from two principles. One 
is the sovereignty of the people, which expresses 
itself in the fact that the supreme law — the con- 
stitution — is the direct utterance of their will, 
that they alone can amend it, that it prevails 
against every other law, that whatever powers 
it does not delegate are deemed to be reserved 
to it, that every power in the state draws its 
authority, whether directly, like the house of 
representatives, or in the second degree like the 
president and the senate, or in the third degree, 
like the federal judiciary, from the people, and 
is legally responsible to the people, and not to 
any one of the other powers. 

^' The second principle, itself a consequence of 
this first one, is the distrust of the various organs 

1 B i.440. 



l;^() THE STATE 

and agents of government. The states are care- 
fully safeguarded against aggression bj the cen- 
tral government. So are the individual citizens. 
Each organ of government, the executive, the 
legislature, the judiciary, is made a jealous 
observer and restrainerof the others. Since the 
people, being too numerous, cannot directly man- 
age their affairs, but must commit them to 
agents, they have resolved to prevent abuses by 
trusting each agent as little as possible, and sub- 
jecting him to the oversight of other agents, 
who will harass and check him if he attempts 
to overstep his instructions. ' ' 

These state constitutions have served as models 
for later state constitutions and for the United 
States constitution, but the recent tendency has 
been to extend the suffrage and other democratic 
features 1 and also to go into much greater 
detail, and to fix in this unyielding law such 
matters as private law, education, corporations, 
municipal indebtedness, etc. ^ 

Thus the lUinois constitution of 1870 requires 
warehouse keepers in cities of 100,000 or more 
to. make a weekly statement of the contents, and 
to keep a copy of the statement posted in the 
warehouse on which shall be noted each day the 
changes in the stores. Other state constitutions 
forbid duelling, and, like that of New York (120), 

1 B i.439. 2 B |_ 428 433. 



THE CONSTITUTION AND STATUTE LAW 131 

lotteries. The provisions regarding slavery in 
the first state constitution of Missouri led to 
the famous Missouri Compromise of 1820. Sev- 
eral states have constitutional provisions forbid- 
ding or regulating the sale of intoxicating 
hquors. 1 The Oregon constitution of 1857 for- 
bade a Chinaman to own or work a mining claim. 

Such constitutional provisions do not give the 
state additional power, but they hmit the power 
of the legislature. 2 

Bryce says (ii.395): 

'' The people have more direct control over 
legislation through a convention making a con- 
stitution than they have over the action of a 
legislature. The delegates to a convention go 
straight from the election to their work, have 
not time to forget, or to devise means of evad- 
ing, their pledges, are less liable to be ' got at ' 
by capitalists. They constitute only one house, 
whereas the legislature has two. There is no 
governor to stand in the way with his veto. ' ' 

And again (1.421): ^'A state constitution is 
really nothing but a law made directly by the 
people voting at the polls upon a draft submitted 
to them. The people of a state when they so 
vote act as a primary and constituent assembly, 
just as if they were all summoned to meet in 
one place, like the folkmoots of our Teutonic 

iBi.423. 2 B i.250. 428. 438, 439. 



1^2 



THE STATE 



forefathers. It is only their numbers that pre- 
vent them from so meeting in one place, and 
obhge the vote to be taken at a variety of poUing 
places. Hence the enactment of a constitution 
is an exercise of direct popular sovereignty to 
which we find few parallels in modern Europe, 
though it was familiar enough to the republics 
of antiquity, and has lasted till now in some of 
the cantons of Switzerland. ' ' ^ 

The differences between a provision of the con- 
stitution and a statute law (a law passed by the 
legislature), may be thus summarized : 

A statute law 

1. Must conform to 
the constitution. 

2. Made by the legis- 
lature and the execu- 
tive. 

3. May be repealed 
easily and quickly. 



The constitution 

1. Supreme. 

2. Made by delegates 
chosen by the people for 
that purpose. 

3. Can not be re- 
pealed, but may be 
made obsolete by 
amendments. 

4. Can be amended 
only by complicated 
process occupying 
much time. 

5. Can not be set 
aside by the courts. 



4. May be amended 
easily and quickly. 



5. Is rendered nuU 
and void if pronounced 
by the courts unconsti- 
tutional. 



iBi.417, 448, 456. 



THE CONSTITUTION OF NEW YORK 133 

New York has had 4 constitutions, those of 
1777, 1821, 1846, and 1894. The last is stiU in 
force. That of 1777 was adopted by the con- 
vention alone ; the others have been ratified by 
the people. 

In 1777 a convention of delegates chosen by 
the 12 counties met at Kingston and on April 20 
adopted the first state constitution. 

It was more liberal in its provisions than that 
adopted at the time by any of the other twelve 
states. '^ It guaranteed absolute freedom of 
religious worship to every citizen. ' ' Except in 
two particulars, its provisions have been mostly 
retained. (1) A council of appoiiitmeut was cre- 
ated, consisting of one senator from each dis- 
trict, appointed by the assembly, and presided 
over by the governor, who had a casting vote. 
This council appointed all the judiciary officers, 
from the chief justice to the justice of the peace. 

A convention was called in 1801, but not a vote 
could be obtained for the abolition of this fea- 
ture, which had proved a useful part of the 
machinery of the party in power. The conven- 
tion of 1821 abohshed this council, but retained 
its powers, dividing them between the governor 
and senate, and the two houses in joint session. 
The revision of 1846 made all judges and jus- 
tices of the peace elective by the people. 

(2) A council of revision was also created, con- 



i;U THE STATE 

sisting of the governor, the chancellor, and the 
judges of the supreme court, to which all bills 
l)assed by the legislature had to be submitted 
before they could become laws. This council 
was abolished by the revision of 1821, and its 
powers transferred to the governor (see page 21:1). 
Minor changes that have since been made are 
treated under the topics concerned. The con- 
stitution drafted by the convention of 1867 was 
mostly rejected by the people, and that drafted 
by the convention of 1894 is given in full (page 
628). All references to this constitution are 
in heavy -faced figures referring to the para- 
graphs as numbered, and should always be com- 
pared with the original. Numbers below 110 
refer to corresponding sections of the national 
constitution, and are cited for convenience of 
comparison. 

Amendments may be made at any time. 
They must first be passed by concurrent resolu- 
tion of both houses of the legislature, and again 
succeeding the next election of senators; after 
which they must be submitted to popular vote, 
and if a majority of those voting approve, they 
become a part of the constitution (287). Thus 
the amendment marked 169 a was adopted by 
the legislature in 1899, and again, after the elec- 
tion of senators in 1900, by the legislature of 



AMENDMENTS 135 

1901. It was then submitted to the people at 
the general election of 1901 and adopted. 

The present constitution requires that at the 
general election in 1916 and every 20th year 
thereafter the question whether there shall be a 
convention to revise the constitution shall be 
submitted to the voters, and if a majority favor, . 
such a convention shall be called (288). 

The convention of 1894 which adopted the 
present constitution was made up of 3 delegates 
from each senate district and 15 delegates at 
large, and the members received the salary and 
mileage of members of assembly (see page 223). 
It met in Albany May 8, and adjourned after 
proposing the constitution Sept. 29. The con- 
stitution in its present form was adopted by the 
people at the general election, Nov. 6. The 
changes made are shown in the dates at the end 
of each section. 



CHAPTER XIII 

THE BILL OF RIGHTS 

The constitution begins by imposing certain 
limitations on the power given to the govern- 
ment of the state, applying to the legislative, 
the executive, and the judicial departments. 
These are a numeration in more detail of the 
* ' inalienable rights ' ' of the Declaration of Inde- 
pendence (see page 591), of which those there 
specified are life, liberty, and the pursuit of 
happiness. From the statute passed in the time 
of WiUiam and Mary (see page 123) this part 
of the constitution is commonly called the bill 
of rights. ^ It is found in most state constitu- 
tions, and is embodied in amendments to the 
federal constitution (84-92). ^ 

Aright is a just claim. A natural right — as 
the Declaration of Independence calls it, an in- 
alienable right — is a right inherent in all. 

A personal right belongs to one as an individual, 
such as security, liberty, religious freedom, 
acquirement of property, and may be civil or 
political. 

A civil right belongs to one as a member of a 
community, such as government protection. 

(136) 



HABEAS CORPUS 137 

A political right belongs to one as a citizen, 
and in a republic involves his share in the gov- 
ernment as to vote. Political rights come from 
a constitution; vrithout this, poHtical rights do 
not exist (see page 119). 

Eights may be forfeited. A man's first right 
is to life, but he may lose this right if he takes 
the life of another. He has a natural right to 
hberty, but he may forfeit it if he wantonly 
transgresses the liberty of others, as by assault 
or theft. Rights may be lost through no fault 
of the person, as when a man loses his liberty 
if he becomes insane and therefore dangerous. 

But this forfeiting of these rights must be by 
due process of law (11 7, 88), which Daniel Web- 
ster defines as ^ ' the general law ; a law which 
hears before it condemns ; which proceeds upon 
inquiry, and renders judgment only after trial." 

(1) Personal Rights 

Security (from Latin se and cura, without 
care) is provided for by several restrictions upon 
the government, especially by the provision that 
the writ of habeas corpus shall not be suspended 
except when public safety may require it, and 
only in cases of rebellion or invasion (115, 45). 

A writ is a written instrument^ issued by a 
judge having competent authority, commanding 
the person to do or not to do some action speci- 



(MX PERSONAL KKIHTS; SEC^UKITY 

lied. A writ of habeas corpus (Latin, you may 
liave the body) is directed to the officer who 
detains a person, commanding him to produce 
the person at a certain time and place and show 
reason wliy he detains him. Unless jast and 
legal course is shown the person is discharged. 

This ensures that every accused person shall 
know the exact nature of the charge agaiost 
him, and prevents illegal detention or imprison- 
ment. Sometimes it enables parents to get con- 
trol of their children, and relatives to secure the 
release of persons confined under allegation of 
insanity. 

The suspension of habeas corpus in times of 
rebellion or invasion may become a necessity. 
On April 27, 1861, President Lincoln ordered it 
suspended,^ and on March 3, 1863 congress took 
the same action. It has never been suspended 
by the state of New York. 

The writ is granted in the discretion of the 
judge, and only upon affidavit giving the facts 
and stating that the detention is contrary to law. 

Federal judges often grant the writ to persons 
imprisoned under state authority for violation of 
federal law, and state judges have sometimes 
released federal prisoners. 

Security requires that the citizen be protected 
against unreasonable searches and seizures, either 



SEARCHES; SEIZURES; EX POST FACTO LAWS 139 

of person, or of houses, papers, and effects ; and 
the national constitution forbids that these shall 
be made except upon oath of probable cause, 
particularly describing the place to be searched 
and the person or thing to be seized (87). 

To search a man's person or his home is a per- 
sonal indignity, and warranted only upon strong 
presumption of guilt. If my watch is stolen 
and I am confident another man has it in his 
pocket I may appeal to a policeman to search 
him ; or if I am sure the man has it in his house, 
I may make affidavit before a magistrate and 
secure a search-warrant by which some officer 
will search the house. But I am responsible if the 
complaint or affidavit is on insufficient grounds; 
and there can be no searching on general princi- 
ples, to discover what may happen to be found. 

All that can be asked of a person is to obey 
the laws that exist. If an act which he does 
legally to-(^ay may by a law passed to-morrow 
be made illeg;al, he would have no security. 

Hence the provisions in the national constitu- 
tion (46/51) forbidding the passage of any law 
which is ex post facto (Latin, after the act), a law 
declaring an act punishable that was not pun- 
ishable at the time it was committed. 

A law that increased the penalty for a crime 
would be ex post facto if it made the penalty 
retro-active. Thus from 1801 to 1820 to engage 



UO PERSONAL RIGHTS; SECURITY 

in the slave-trade was punishable by fine and 
iniprisoument ; in 1820 it was made punishable 
by death. Had the latter law been made to apply 
the penalty to offences prior to 1820, it would 
have been ex post facto, and unconstitutional. 

The constitution does not allow any bill of 
altaindor, a legislative act inflicting capital pun- 
ishment for crime without judicial trial. This 
would be an encroachment on the judiciary. 

While congress may not convict of treason it 
may declare what the punishment shall be (71), 
but no attainder of treason shall work corruption 
of })lood or forfeiture except during the life of 
the person attainted. 

In England such acts of parliament were com- 
mon, and not only did the person attainted for- 
feit all his property, but his blood became so ^ ' cor- 
rupted" that he could not inherit or transmit 
property, so that his children could not inherit 
from his ancestors. Treason was punishable by 
death in its most horrid and revolting forms. 

Treason has often been made to include crimes 
that involve breach of personal faith; thus it 
was petit treasou for a servant to kill his master, 
the act involving breach of faith as well as mur- 
der. To attempt to kill a sovereign or to wage 
war against him or adhere to his enemies was 
hii^h treason. Under a tyrannical sovereign, 
judges often declared an act to be treasonable 



141 

which had not been supposed to be so, this new 
interpretation having the effect of ex post facto 
law. This was called constructive treason, and 
was forbidden under Edward III. 

If the decision of a prisoner's guilt or inno- 
cence were left to a judge, the prisoner's safety- 
would depend upon the honor, the fairness, the 
intelligence, and sometimes upon the whim of a 
single man. Hence the provisions (113, 69, 90) 
that he have trial by jury (see page 83). 

When a man is held for trial, he is placed in 
custody unless he can furnish bail, a written 
obligation by which he and other persons bind 
themselves, if he does not appear for trial, to 
forfeit a sum of money, the amount of which is 
determined by the judge. It would be easy to 
name a sum so great that the prisoner's friends 
could not furnish it, so the constitution makes 
provision against excessive bail ( 116, 91). 

What amount of bail is excessive depends up- 
on the circurQstances of the case — the gravity 
of the offence, the pecuniary condition of the 
prisoner and his friends, etc. 

If an arrested man could be convicted on the 
testimony of the officer arresting him, or if he 
were obliged to defend himself against a skilled 
prosecuting lawyer, he might be unjustly con- 
demned; so it is provided (117, 89) that in all 
trials the accused person be allowed to appear 



142 PERSONAL RIGHTS; SECURITY 

with a lawyer to defend him. In practice the 
government even pays his lawyer's fees when 
the prisoner is unable to do so. 

He also has the right (89) not only to be con- 
fronted with the witnesses against him, but also 
to have compulsory process for obtaining wit- 
nesses in his favor. 

Before 1688 a person arraigned for a capital 
crime was allowed neither counsel nor witnesses. 

If a man who had been put on trial and ac- 
quitted could again be arrested and tried for the 
same offence, he might be harrassed the rest of 
his life; so it is provided (117, 88) that no man 
shall be twice put on trial for the same offence. 

Of course if the jury fail to agree, he may be 
tried again (see page 85), as that renders the first 
trial of no effect. 

When a prisoner is convicted, his sentence is 
imposed by the judge. It is provided (116, 91) 
that no excessive fines (from LiSitm finis, an end, 
a sum of money paid to make an end of the 
suit) be imposed or cruel and unusual punish- 
ments inflicted. 

Whether a fine is excessive depends upon the 
abihty of the man to pay it. While a street 
laborer might find it impossible to raise $10, Mr. 
J. Pierpont Morgan might think it economy to 
pay a fine of $10,000 rather than lose a day's 
time in serving on a jury, though there are 



143 

judges who would not hesitate to condemn him 
for shirking his duty as a citizen. 

The cruelty of punishment must be largely a 
question of public opinion, which no longer per- 
mits slitting of ears and drawing and quarter- 
ing. The pillory and the whipping-post are in 
most states unusual punishments, though the 
latter is still used in Delaware. 

In examining prisoners in their custody the 
police sometimes resort to torture to force con- 
fession, as in the case of Czolgosz, the assassin 
of McKinley. 

When a man is arrested, it is necessary to 
make sure that at trial evidence be brought for- 
ward from witnesses (from Anglo-Saxon witan, 
to know). Often, though entirely innocent 
spectators, witnesses have been imprisoned for 
long periods to ensure their appearance at the 
trial. The constitution provides (116) that they 
shall not be unreasonably detained. 

All these rights seems to this American gener- 
ation commonplace and matter of course, like 
abundance of air and water. But their establish- 
ment is comparatively recent, and is the result of 
struggles for liberty that lasted for many gener- 
ations. We have seen (page 121) that within 
400 years a monarch's whim could put to death 
any man in his kingdom. 

Liberty (from Latin liher^ free) is something 



U4 PERSONAL RIGHTS; LIBERTY 

more than security. Security protects a person 
as he is; hberty gives him a chance to make 
himself something more than he is. 

The first condition of hberty is free speech 
(119, 8-1). Every citizen may freely speak, 
write, and pubhsh his sentiments on all subjects ; 
and no law may be passed to abridge this right. 

For the abuse of this privilege, however, the 
citizen is justly held accountable (119). In pri- 
vate matters, if a person tells malicious untruths 
of another, it is slander (from Greek sJcandalon, 
a snare), and may lead to suit for damages ; if 
he publishes malicious untruths it is libel (from 
Latin libellus, a little book), and may lead to 
suit for damages and to criminal prosecution. 
In all such trials, however, if it can be proved 
that what was uttered was true, and pubhshed 
with good motives and for justifiable ends, the 
person must be acquitted (119). 

Even to send a dunning note upon a postal card 
is held to be libellous. But beyond this there are 
times when what would ordinarily be allowable 
free speech becomes dangerous and unpermissi- 
ble. "I believe in free speech," said the Duke 
of Wellington, ''but not on board a man-of- 
war." When the nation is in danger great 
mischief may be done by talk that would ordin- 
arily pass unnoticed. 

During the civil war those who proclaimed 



FREE SPEECH 145 

open sympathy with the south were called "" cop- 
perheads " . After the assassination of McKinley 
Senator WelUngton of Maryland was expelled 
from the Union League club of Baltimore for 
declaring himself an enemy of McKinley and 
indifferent. 

All sorts of immoral writings and publications 
are subject to heavy penalties. 

A free press (119, 84) is the free speech not 
of individuals but of the public, and has the same 
guarantee, subject to even greater responsibility. 

In many foreign countries there is still censor- 
ship of the press ; that is, before publication arti- 
cles must be submitted to a government inspector. 
This makes a free press impossible ; under our 
laws no court of justice can take notice of writ- 
ings intended for publication. 

The right of petition (from Latin j^etere, to ask) 
is also guaranteed (120, 84), provided the people 
assemble peaceably. 

Religious liberty (114^ 84), natural as it seems 
to us, was at one time the rarest and most 
highly prized of rights. It has been said that 
the history of the world is a history of religious 
persecution. 

It is further provided that no religious test 
shall ever be required as a qualification for any 
office (281, 82). As to appropriations, see p. 323. 

The form of oath taken in court accompanied 



14() PERSONAL RIGHTS; RELIGIOUS LIBERTY 

by kissing the Bible, is a recognition of Chris- 
tianity, but it is provided (114:) that no person 
shall be rendered incompetent as a witness on 
account of his religious belief; and members of 
the Society of Friends, who object to oaths, 
are allowed to affirm. 

The religious liberty granted is of conscience 
and not unrestrainedly of action; otherwise 
persons might profess religious beliefs that 
would permit licentiousness and other practices 
inconsistent with the peace or safety of the 
state (114). 

Marriage is protected by the provision that no 
divorce shall be granted except by due judicial 
proceedings (120). 

Until 1902, New York did not require a form 
of marriage, but it now^ requires that a mar- 
riage be solemnized either (1) by (a) a clergy- 
man; (6) a mayor, recorder, alderman, police 
justice, or pohce magistrate in a city; (c) a jus- 
tice or judge of a court of record, or of a munici- 
pal court, or a justice of the peace; or (2) that a 
written contract of marriage shall be signed by 
both parties and by at least 2 witnesses, and 
shall be filed within 6 months after its execution 
in the office of the clerk of the town or city in 
which the marriage shall be solemnized. 

The cons titution prohibits gambling, including 

1339:1901. 



PROPERTY RIGHTS ; REAL PROPERTY 147 

pool-selling and book-making upon races, and 
(see page 130) lotteries (120); and it punishes 
betting upon elections (see page 160). 
(2) Property Eights 

Next to personal security and liberty comes 
the individual right to property. 

'' You take my life 
When you do take the means whereby I live." 

Aristotle says that the state having begun as a 
means of making life possible, continues as a 
means of making hfe prosperous. 

Property (from Latin projyriiis, one's own) is 
that which belongs to one as an individual. It 
may refer to characteristics, as the properties of 
oxygen; but in its commoner use it refers to 
material possessions. The child learns to say of 
a toy, ^'This is mine," and to feel injured if 
another takes it away. 

Property in land and the buildings upon it is 
called real property. 

There are several provisions of the state con- 
stitution which come from the patroon system 
that at one time prevailed, being an introduction 
here of the feudal (from Anglo-Saxon feoh, cat- 
tle, which were often required of the tenant) 
system. In 1629 the West India company 
offered to any member of the company who 
should within 4 years place upon the land so 
granted a colony of 50 adult settlers a tract of 



148 PROPERTY RIGHTS ; REAL PROPERTY 

land of 16 miles frontage on any navigable 
water, or 8 miles on both sides, to extend into 
the interior as far as he chose. The owner 
was called a patroou (from Latin pater, a father 
—a patron or defender). He must purchase the 
lands so granted from Indians laying claim to 
them, and must support a minister and a school- 
master, but was to be for ten years protected by 
the government ' ' against all inlandish and owf- 
Za?^d^s/^- wars and powers. " ^ 

In this way a large portion of the land along 
the Hudson and Mohawk came under control of 
these patroons, who exercised absolute control, 
making and executing laws, and even inflicting 
the death penalty. The tenants had few civil 
and no political rights. Eensselaerwyck estab- 
lished a manorial court, and made it a condition 
of renting land that the tenant should agree not 
to appeal from its decisions. Although restric- 
tions were imposed from time to time, the leases 
still contained many humiliating provisions. ^ 

In 1839 the Van Eensselaer heirs demanded, 
besides long arrears of interest left uncollected 
by Stephen Van Eensselaer, the enforcement of 
their right to one-fourth of the sales of products 
of the land in case of alienation (from Latin alius, 
another — sale to another) thus caUed quarter 

1 Prentice, 50-52, 63, 401, 404-6. 

1 Debates and Proceedings in the convention for the Eevision 
of the Constitution, 1846, pp. 802-5, 815-17, 907-10. 



REVOLT AGAINST THE PATROON SYSTEM 149 

sales. Thousands of farmers formed themselves 
into anti-rent associations, armed and disguised 
themselves as Indians, and committed such 
depredations that Gov. Seward issued a procla- 
mation against them, while to assist him in serv- 
ing the papers, the sheriff called out a posse of 
TOO men with mihtia from Troy and Albany. 
The legislature of 1840 appointed commissioners 
to adjust the difficulty, but the landlords refused 
to accept the terms offered, and violence was 
repeated in 1845, when a Delaware county sher- 
iff was murdered, and Gov. Wright ordered out 
the militia. 

V 

The legislature of 1846 abohshed distress for 
rent, and the constitution of 1846 set a time 
limit to leases and declared feudal tenures abol- 
ished, as they had been for 15 years by statute. 
In the same year the anti-renters elected John 
Young governor, and he pardoned the 54 anti^ 
renters who had been imprisoned. 

In 1852 the court of appeals decided that even 
previous to 1846 aU reservations of quarter-sales 
were unconstitutional, which practically ended 
the anti-rent movement as an organization. 

The present constitution declares that the 
original and ultimate property in all lands within 
the state belongs to the people (121); that all 
feudal tenures are abolished (122); that aU 
lands are allodial (from Latin allodium^ entirely 



150 PROPERTY RIGHTS; REAL PROPERTY 

one's own), so that, subject only ^to escheat 
(from Latin cadere, to fall — the eversion of prop- 
erty, to the state in case the o vner dies without 
heirs), the entire and absolute property is vested 
in the owners (123); that no lease of farming 
land in which is reserved rent or service of any 
kind shall be valid if for longer than 12 years 
(12-t); that all fines (see page 142— a sum of 
money paid by the tenant for the privilege of 
transferring property), quarter sales, and like 
restraints upon alienation shall be void (125); 
and that no purchase of lands from the Indians 
shall be valid unless made with consent of the 
legislature (126). 

By statute 1 an alien (see page 155) can own 
real property only after making written declara- 
tion of his intention to become a citizen; and 
minors, idiots, or persons of unsound mind can 
not tranfer it. 

Eeal estate may however be taken from the 
owuer against his will. When land is needed 
for a pubhc use, the state may take it by right 
of eminent domain (from Latin dominus, owner 
— the superior dominion of the sovereign power). 
This right apphes as well to personal as to real 
property, but is seldom appHed to personal prop- 
erty except in time of war when supplies are 
needed. 



547:1896. 



PERSONAL PROPERTY 151 

When land is required for public buildings, for 
highways, for water- works, for canals, the legis- 
lature may take it. It may delegate to a railway 
company the right to take land for its road. 

The constitution provides, however, that when 
private property is so taken there must be just 
compensation (117^ 118). Land may be taken 
for roads legally pronounced necessary, and for 
drains, dykes, and ditches, but only under proper 
restrictions and with just compensation, and 
never by special act of legislature (118). 

Of course real estate may be sold for unpaid 
taxes or for legal judgments otherwise uncollect- 
able (see page 69). Taxes might be made so high 
as to result almost inevitably in the confiscation 
of property (see page 300). 

The state ha& also much control over real estate 
m its police power. It may render a brewery 
useless by enacting that no beer shall be manu- 
factured. It may regulate the leasing of tene- 
ment houses so as to render buildings untenant- 
able, and it forbids the use of private houses for 
'' sweat-shops". 

All property which is not real property is 
known as personal property, including furniture, 
clothing, money, bonds, stocks, mortgages, etc. 

Personal property is also protected. In former 
times sovereigns often distressed their subjects 
by quartering soldiers upon them — that is by 



152 POLITICAL RIGHTS; THE FRANCHISE 

scalding soldiers to private houses for lodging 
and meals. This is one of the complaints in 
the Declaration of Independence (see page 591). 
The constitution provides that in time of peace 
this shall not be done without consent of the 
owner, or in time of war except in a manner 
prescribed by law (88). 

A man's house is his castle; and though he 
be onlj a tenant, the house is his while he oc- 
cupies it. 

The legislature is forbidden (128^ 51) to pass 
laws impairing contracts (see page 523). 

Of course laws may be passed putting con- 
ditions upon future contracts, but not chang- 
ing the conditions of those that have been made. 
This applies to grants by the legislature (128), 
which are irrevocable. Daniel Webster won a 
great victory for Dartmouth college when he 
proved unconstitutional the attempt of the New 
Hampshire legislature to transfer the govern- 
ment of the institution from the charter trustees 
to trustees appointed by the legislature. 

(3) Political Eights 

The chief political right of the citizen is to 
vote, and of this he can not be deprived except 
by the law of the land or the judgment of his 
peers (112). This right is so important that we 
give it a separate chapter. 



A PRICELESS HERITAGE 153 

• 

Besides these constitutional guarantees, per- 
sonal and property rights are confirmed by a 
multitude of statutory provisions, some of the 
more important of which are treated later in 
separate chapters, pages 492 and 507. The cor- 
responding duties these rights entail are spoken 
of on page 495. It is difficult for an American 
child of this country to reahze how precious is 
his heritage until he begins to read history, and 
compare his security and liberty with that of 
other times and climes. Everyone of the rights 
treated in this chapter represents the sacrifices 
for lofty purpose of those who have gone before 
us. It is for this generation not only to hold 
fast to all that is good, but to go on perfecting 
the structure of government. New York has 
done its part ; its constitution and its laws repre- 
sent to-day the fore-front of present attainment. 
But there is much stiU to be achieved, and it is 
the duty of all citizens not only to comprehend 
and appreciate the government under which they 
live, but to aid in perfecting it. 



CHAPTEE XIV 

THE ELECTIVE FRANCHISE 

A franchise (from French franc, free) is a par- 
ticular privilege granted by a sovereign, a con- 
stitution, or a statute. 

The elective franchise, or the right to vote, is 
conferred by the state constitution (130). 

A vote is sometimes called a suflPi^age ^ (from 
Latin sub and fr anger e, to ^ break, because a 
broken potsherd was formerly used in voting). 
Those who have the right to vote are often 
called freemen or electors. 

New York limits the suffrage to (1) males ; (2) 
of the age of 21 ; who have been (3) citizens 90 
days; (4) inhabitants of the state 1 year; and 
residents (5) of the county 4 months and (6) of 
the election district 30 days ,(130); (7) duly reg- 
istered if required (133); and who are not (8) lun- 
atics, (9) idiots, (10) paupers (132) ; or convicted of 
(11) giving or receiving bribes (131/281), of (12) 
betting upon election (131), or of (13) any infam- 
ous crime. ^ We will consider these in detail. 

(1) Woman suffrage has been granted in full in 
several states, and in part in several others. 
Women have been allowed to vote at school 

1 Titus Andronicus, i.2; iv.3. 2 654:1901. 
(154) 



LIMITATIONS OF THE RIGHT TO VOTE 155 

meetings in New York since 1880, and those 
who own property have been allowed to vote on 
questions involving the expenditure of money 
since 1901 (see pages 19, 32). 

(2) The age of 21 is fixed almost universally as 
that of " coming of age ", including release from 
parental authority, and the recognition of suffi- 
cient maturity to act with judgment and dis- 
cretion. 

(3) Citizens (from T'rench cite^ a city) are natives 
of this country, and natives of other countides 
who have become citizens by naturalization (99). 

When naturalized, an alien (from Latin alien- 
us, compare page I-IS, belonging to another coun- 
try) has all the rights of native citizens except 
that of being elected president or vice-president 
(57, 97). Until he is naturalized, an alien is a 
subject of the country from which he came. 

In one-fourth of the states citizenship is not 
required. ^ 

Bryce says (ii.290; see also ii.95): '^ From the. 
immigrants neither national patriotism nor a 
sense of civic duty can as yet be expected ; the 
pity is that they have been allowed civic power. ' ' 
By the common law an ahen could not hold real 
estate, and in some states an act of the legisla- 



^ B i.3l9, 406. Indiana, for instance, gives the franchise to 
aliens who have resided a year in the United States and 6 months in 
Indiana, and who have declared their purpose to l)ecome citizens. 



15(1 POLITICAL RIGHTS; THE FRANCHISE 

ture is still required to enable him to hold such 
property (see page 150). 

New York requires (130) that the voter shall 
have been a citizen for 90 days. 

Congress has entire control of the naturaliza- 
tion of aliens (29) ; which is of course necessary, 
since if New York required 2 years residence 
and Massachusetts 6 years, an alien naturalized 
in New York might move to Massachusetts and 
demand recognition as a citizen (09, 73). 

The original law of congress (1790) ma^e the 
term of residence before naturalization 2 years, 
but in 1795 it was made 5 years. From 1798 
to 1802 it was 14 years, but has since been 5 
years. There must also be 1 year of residence 
in the state where he is naturalized. 

At any time after becoming a resident an ahen 
may file in a circuit or district court of the 
United States or any court of record of a state 
a declaration of intention to become a citizen, 
and 2 years longer must intervene before he 
receives his naturalization papers. He must 
file with the clerk of the court to which he is to 
apply, 14 days before his request is acted on, a 
written application giving his name, his resi- 
dence, and the names and residences of the wit- 
nesses he is to bring. A record of these state- 
ments is kept on file open to pubhc inspection. 
When he applies he must renounce allegiance to 



NATURALIZATION 157 

all foreign powers, and swear to support the 
constitution of the United States, whereupon 
he receives a certificate of citizenship. 

When he becomes naturalized, his children 
under 21 if residents here become citizens. If 
he has declared his intention and has died before 
becoming naturahzed, his wife and children may- 
become citizens on taking the proper oath. 

This declaration is not required of minors who 
have resided in the United States from 18 to 21, 
have continued to reside here tiU time of applica- 
tion, and have resided here 5 years. 

Persons born out of the limits of the United 
States ; of fathers who are at the time citizens of 
the United States, are citizens of the United 
States ; but the rights do not descend to persons 
whose fathers never resided in the United States. 

Until 1870 the privilege of naturahzation was 
confined to white persons. In 1882 congress de- 
nied the privilege to the Chinese. The 14th 
amendment (99) declares the negroes to be citi- 
zens, and the 15 th (104) secures them the suf- 
frage. 1 The act of congress of 1875 giving all 
persons the right to equal enjoyment of inns, 
public conveyances, places of amusements, etc., 
was declared by the supreme court to be uncon- 
stitutional so far as the states were concerned. 

The political disabilities imposed by the 14th 

iBii.157. 



158 POLITICAL rights; the franchise 

amendment (101) on some of those who had 
participated in the civil war were removed by 
congress, and proclaimed by the president in 
1S6T and 1868. i 

{4:, 5, 6) Residence is required, that a man may 
be known to have the right to vote ; and that he 
may have personal interest in the issues pre- 
sented, and acquaintance with the circumstances 
that prevail. 

No one gains or loses a residence by presence 
or absence (1) in the service of the United States, 
(2) while engaged in navigation upon the waters 
of the state, (3) while a student of any seminary 
of learning, (4) while kept at any charitable in- 
stitution, or (5) while confined in prison (132). 

New York requires residence not only in the 
state for 1 year and in the county for 4 months, 
but in the election district for 30 days. This is 
to prevent frauds at elections by ^'colonizing" 
voters just before election, without giving time 
to investigate. 

If disqualified to vote for any officer a man k 
disqualified to vote for all. Thus by moving 
from one district in the dty to another within 30 
days of election he loses the right to vote at that 
election not only for city but for county and state 
officers. 

(7) Regictratioii (see page 177) is required at 

^Bii.157. 



LIMITATIONS OF THE RIGHT TO VOTE 159 

least 10 days before election, that there may be 
time to detect any frauds. 

(8) Lunatics (from Latin luna^ the moon — be- 
cause formerly supposed to be influenced by 
changes in the moon), and (9) idiots (from Greek 
idiotes, an ignorant person) are plainly unfit to 
exercise the franchise. 

(10) Paupers (from LiSitm pauper, contracted in 
English to poor) are allowed to vote in most 
states, though it seems unreasonable that those 
who have not ability to support themselves 
should vote as to the disposition of the property 
of others. 1 

On the other hand the actual possession of 
property is not now required. The New York 
constitution of 1777 made such a requirement, 
and Ehode Island maintained a small property 
qualification tiU 1888. ^ But it is the American 
idea that every man who supports himself, rich 
or poor, pays taxes directly or indirectly, and is 
interested that the government should be rightly 
administered. 

In some states only those can vote who pay a 
polP tax, a tax of a specified amount levied upon 
every citizen without regard to the amount of 
property he owns. 

This sometimes prevents poor citizens from 
voting, and sometimes tempts a candidate to 

1 B i.464. 2 B i 123, 465. ^ ggg page 165. 



1(10 POLITICAL RIGHTS; THE FRANCHISE 

offer to pay it for those who will vote for him. 
Though a man own property in a dozen states 
he can vote only where he has his residence. ^ 

(11) Bribery (from French bribe, the scraps 
given to a beggar) is provided against in the 
constitutions of most of the states. In Tennes- 
see a person convicted of bribery is for 6 years 
thereafter disqualified from holding office. 

Bribery may consist in offering gifts to influ- 
ence a voter at an election or to influence official 
acts of an officer or a legislator. When a bribe 
is offered and refused, only the one offering 
is criminal ; but if the bribe is accepted both are 
equally guilty. 

While bribery is often the direct payment of 
money, it may assume other forms. In strict 
construction the promise of an office should the 
party be successful might be so considered; 
though this has been construed leniently, since it 
is difficult to draw the hne between a party and 
a personal service. But when a contractor is 
promised a certain contract, or a newspaper a 
certain kind of advertising, or a corporation cer- 
tain privileg(3s, the bribery is no less real (282- 
284). 2 

(12) Betting upon election disqualifies a person 
from voting, his interest to win the bet being 

Mi i. 585. 2 Bii. 150-159. 



DISQUALIFICATIONS 161 

assumed to be greater than to secure the elec- 
tion of the person best quahfied. 

(13) Infamous crimes are spoken of on page 
545. 

The United States constitution forbids a state 
to deprive a person of the elective franchise on 
account of race, color, or previous condition of 
servitude (104), but otherwise leaves the matter 
entirely to the states, making the electors for 
members of congress the same in each state as 
those whom the state permits to vote for the 
most numerous branch of the legislature (3). 

It provides that if any male citizens 21 years 
old are not allowed to vote the representation of, 
the state shall be proportionally diminished (100) ; 
but though several of the southern states have 
passed laws practically excluding most of the 
negro vote by imposing educational or property 
qualifications^ congress did not diminish their 
representation in that body by the apportion- 
ment of 1901. As a rule the Chinese have no 
political rights. 

As to whether educational qualifications should 
be demanded in good faith there is a difference 
of opinion. Bryce says: '' Education ought, no 
doubt, to enhghten a man; but the educated 
classes, speaking generally, are the property- 
holding classes, and the possession of property 

1 B i.465^ 



162 POLITICAL RIGHTS; THE FRANCHISE 

i 

does more to make a man timid than education 
does to make him hopeful."^ 

In cities and villages of 5,000 inhabitants, be- 
fore every general election 4 meetings of regis- 
tration are held on the 4:th and 3d Fridays and 
the Jrth and 3d Saturdays before election, to be 
open in New York and Buffalo 7 a. m. to 10 p. m. ; 
elsewhere 8 a. m. to 9 p. m. In other places 
2 meetings are held, on the 4:th and 3d Saturdays, 
from 9 a. m. to 9 p. m. Each pohtical party 
entitled to file certificates of nominations (see 
page 172) may appoint not more than 2 watchers 
to attend the meetings for registration, and sit 
within the guard rail. ^ 

A person who offers to register (see page 177) 
may be challenged (from Latin calumnia, accusa- 
tion) by any qualified voter present. Thereupon 
the chairman of the board of inspectors must re- 
quire the challenged person to fill out under oath 
a challenge affidavit, a book being supphed to each 
board. This asks questions as to identity, resi- 
dence, conviction of felony, etc., and gives 
height, weight, color of hair, hair on face, and 
kind of nose. If he so fills out the affidavit as 
to convince the inspectors that he is entitled to 
vote, they must enrol his name; but if not, his 
name is to be entered as disquahfied. To fill out 
the statements falsely is to be guilty of perjury 

'Bii.244. 2 3QQ.19QJ 



CHALLENGES 163 

(see page 546). At the close of each day the 
copy of the statements in the a:^ davit is dehv- 
ered to the sheriff or pohce officer for investiga- 
tion, and if any statement be found untrue, the 
facts are presented to the district attorney for 
presentation to the grand jury (see page 82). 

A person may also be challenged when he 
offers to vote, and required to answer orally the 
questions upon the affidavit already mentioned, 
and unless he answers them satisfactorily his 
vote is not received. ^ 

A majority (from Latin major, greater; see 
page 102) of votes is more than one-half of all 
the votes cast; a plurality (from L^tin plus, 
more) is more for one candidate than for any- 
other. Thus if of 1,000 votes A receives 450, 
B 350, and C 200, A has a plurality but not a 
majority. 

In most of the New England states a majority 
is required to elect the highest officers, and in 
the case above a new election would be required, 
or would be thrown into the legislature. So New 
York and most other states require only a 
plurality vote. 

In the election of supervisor, where the vote 
is a tie a special election must be held. ^ 



1544:1901. 2 349:1901. 



CHAPTER XV 

ELECTIONS 

In all forms of government the choice of offi- 
cers is the most important consideration. No 
matter how wisely laws are framed, they are 
useless unless they are justly and wisely ad- 
ministered. 

In monarchial governments most officers are 
appointed directly or indirectly by the sovereign, 
but in a republican government all officers are 
elected directly or indirectly by the people. The 
tendency is strong at present to make elective 
offices fewer, and to give to those elected the 
power to appoint the minor officers (see page 
102); but the elected officers are responsible to 
the people for the appointments they make, and 
when their terms of office expire are not likely 
to be re-elected unless their appointments have 
been wise — so the power is still in the hands of 
the people. 

Elections (from Latin eligere, to choose) are 
periodical determinations by the people of who 
shall represent them in the various offices estab- 
lished by law. They are frequent, as the times 
of town, village, city, state, and national officers 
expire and their successors are to be chosen. 

(164) 



NOTICES OF ELECTION 165 

New York provides that state elections shall 
come in the even-numbered and in the larger 
cities municipal elections in the odd-numbered 
years (279) so that the issues may be kept 
distinct. 

The general election in New York and many 
other states occurs on the Tuesday following 
the first Monday in November (149). This is in 
leap-years the day of the presidential election, 
and has been adopted in many counties for the 
town-meetings (see page 31). 

Notice of election is sent by the secretary of 
state to all county clerks at least 3 months before 
each general election, stating the day and nam- 
ing each state officer to be voted for; and the 
notice, with corresponding notice of the election 
of local officers, is published by the county clerk 
in newspapers designated. ^ 

Special elections may be held only upon due 
public notice. 

The voting-places or polls (from low German 
polle, meaning head, hence person, and hence 
place where voting is done) are appointed at con- 
venient places in each election district (see page 
48), and are open from 6 A. M. to 5 p. m. ^ 

The usual manner of voting is by ballot (from 
French hallotte a little round ball, still commonly 
used in voting for candidates for clubs). 

1333:1901. 2 654:1901, 



100) ELECTIONS 

• 

There are other ways of voting, as by the 
voice, or viva voce (Latin, by the Hving voice), 
where those in favor are called upon to say aye, 
and afterward those opposed to say no. English 
members of parliament were elected in this way 
until 1871. But this is suitable only in small 
meetings, as the fewer in number may shout 
the louder and seem to be more numerous. 

Another way is by show of hands, or by 
standing, those in favor and those opposed being 
called in turn and the numbers counted. 

Both of these methods require all the voters 
to be present at the same time, while by the 
ball(^t the voting may extend over a long period. 

Both of them involve open voting, which may 
lead a man to vote against his convictions, to 
oblige a friend, not to offend an employer, or to 
earn a bribe. The ballot is therefore a protec- 
tion to the timid, and, if really secret, a defence 
against corruption. It was provided for in some 
of the colonial charters, and is now almost uni- 
versaU y required. 

New York requires that except for certain 
town officers (see page 31) election must be by 
ballot, " or by such other method as may be pre- 
scribed by law, provided that secrecy in voting 
be preserved" (134). 

By the original ballot systom, separate tickets 
for the various offices were prepared and dis- 



MANNERS OF VOTING 167 

tributed by the candidates or the parties, and 
dropped by the voter into a box. This did 
not ensure secrecy. The ballots for the different 
candidates could sometimes be distinguished; 
and a briber who had given a voter a ticket 
could watch him till he deposited that very ticket 
in the box.^ 

The Australian 2 ballot used in New York has 
these advantageous features : (1) A stall is pro- 
vided for the voter, where he may cast his vote 
in secrecy, — at least one stall for every T5 voters, 
and in which no voter is allowed to remain more 
than 5 minutes, so that there may be plenty of 
time to vote; 

(2) The names of all the candidates nominated 
by all the parties are printed on a single ticket, 
so that the voter can choose freely and intelli- 
gently; 

(3) The ballots are provided at public expense, 
so that the?-e is no advantage to a wealthy party, 
and no excuse for levying assessments upon 
candidates. ^ 

The form of the Australian ballot is shown on 
page 169, where it is used in a voting machine. 
•The names of all candidates are printed on a 
single large sheet, those of each party arranged 
in a column, with the emblem of the party over 
it or at the left-hand side. 



1 B ii,136, 138. ^ go called because first used there. ^ b ii.l35. 



ins ELECTIONS 

Those shown are the eagle (repubUcan), the 
star (democrat), the workman's arm (labor), 
the fountain (prohibition), the clover (people's), 
th(^ ship (natic^nal democrat), and the anchor 
(independiMit reform). 

On the ballot a large circle is placed over its 
party emblem, and the voter may vote the 
"straight ticket", that is for all the candidates 
of his party, by marking a cross in this circle. 

If he wishes to "spht" his ticket, that is to 
vote for some candidates of one party and some 
of another, he puts a cross before each name for 
which he desires to vote. The voter receives 
the ballot folded and gives it back folded in the 
same way, so that it can not be seen how he has 
voted. 

Yotiiig machines are authorized by congress 
and by the laws of many states. In New York 
three voting machine commissioners ^ are ap- 
pointed by the governor for a term of 5 years. 
One of them must be an expert in patent law, 
and two mechanical experts. When they have 
examined a voting hiachine and reported to the 
secretary of state that it may be safely used, it 
may be adopted at elections. Where this is 
used no ballot clerks are elected. 

The form usual in this state is as follows : 



466:1899. 



A VOTING MACHINE 



169 




A full Australian ballot is placed upon the 
front of the machine, in full view of the public, 



17(1 ELECTIONS 

luitil the voter enters the booth, when a curtain 
automatically encloses him. At the head of 
each ticket, over the party emblem, is a brass 
knob. The voter selects the one he wishes to 
vote, pulls the knob to the right, and lets it slip 
back, which casts a vote for the entire list of 
candidates below. This leaves a pointer point- 
ing to each name on the straight ticket. If the 
voter wishes to vote for some other candidate 
for some office, he turns back the pointer from 
the name he does not wish to vote for, and 
turns the pointer to some name in the same line 
that he wishes to vote for. If he does not wish 
to vote for any name on the printed ballots, he 
may move to the right a slide in the blank col- 
umn and write the name on the paper. If he 
turns back the pointer from a name but does 
not vote for some other name in the same line, 
his vote for the office on that line will be blank. 
When he has voted he opens the curtain and the 
lever registers his ^ote and turns back the 
pointers, thus concealing what he has done. 

In the cut given, the voter has pulled the knob 
for the democratic ticket, but has split the ticket 
by voting for the repubhcan candidates for the 6th 
and 10th offices, the prohibition candidate for 
the 8th, and an unnominated name for the 12th. 

To vote yes on the amendments or questions 
proposed in the right hand column, he moves the 



THE MACHINERY OF KOMINATIONS iTl 

pointer up to the '' yes " ; to vote no he moves 
it down to the " no ". In the cut given he has 
not voted upon the questions given. 

The voter may not remain more than ' one 
minute in a booth, and election districts using 
the machines must not contain more than '600 
voters. 

In some states each voter may vote for only 
part of those nominated, so as to give the 
minority a chance to elect one or more candi- 
dates. Thus in Pennsylvania each county is 
governed by a board of three commissioners, 
elected for three years, upon a minority vote 
system, the elector being allowed to vote for two 
candidates only. ^ 

That these Australian baUots should be printed 
at public expense, laws are necessary regarding 
nominations (from Latin nomen, name), which 
must be filed as follows : ^ 

"« S tvith whom days before election t. a,s 

It ■ If 

state secretaryof state, not more than 40, and not less than 30 25 

city city clerk 35 25 20 

county county clerk 35 25 20 

village village clerk 20 15 10 

town town clerk 20 15 10 

In special elections ordered by the governor 
nominations must be filed not less than 15 days 

iBi.580. 2 645.1901. 



I7i> ELECTIONS 

before the election. All nominations must be 
publicly advertised, those at general elections in 
designated newspapers for 6 days, and those for 
town or village elections by posted notices at 10 
places for 1 day. i To be recognized upon the 
ballot, certificates of indipendent nominations 
must be filed, signed by electors as follows : 

kind of office filed with ichom number 

required 

state secretary of state 6,000 

cities of 1st class city clerk ^ 2,000 

cities of 2d class city clerk 1,000 

cities of 3d class city clerk 500 

ward^ city clerk 100 

county'^ county clerk 1,000 

assembly county clerk 500 

commissioner district county clerk 500 

village^ viUage clerk 100 

town^ tov^n clerk 100 

Vacancies occurring in party nominations may 
be fiUed by a majority of the committee of the 
party which filed the certificate. 

Besides (1) attending to the registration of 
voters (see page 177), the inspectors (see page 
48) (2) make ready the polling places, ballot 
boxes, etc. ; (B) preside at election, receive the 
votes and deposit them in the boxes prepared; 
(4) at the close of the election count them and 

» 054:1901. 2 Except in New York and Brooklyn. 

3 New York, Kings, and Erie require 2,000. 

* When an assembly or school commissioner district, 500. 



CANVASSING THE RETURNS 173 

(5) prepare a certified statement of the result 
and two certified copies. One of the certified 
copies is dehvered to the supervisor, or in his 
absence to an assessor. The other certified copy, 
with the poll books, one tally sheet, and one of 
the registers used, they file in the town clerk's 
office within 24 hours after completing the can- 
vass. The original certified statement, with the 
sealed packages of void and protested votes, 
stubs and unvoted ballots, the record of chal- 
lenged and assisted voters, one of the tally 
sheets, and 3 copies of the register, must be 
filed within 24 hours in the county clerk's office, 
for him to keep sealed. If the election is for 
the choosing of town, city, village, or district 
officers, the inspectors determine who is elected 
aiid declare the result. But for other elections 
the returns are referred to the county board of 
canvassers. 

This is the board of supervisors ^ (see page 64), 
which meets on the Tuesday next following the 
election. It elects one of its members chair- 
man, and the county clerk is clerk of the can- 
vass. It receives all the records of the election 
from the county clerk and the supervisors, can- 
vasses the votes, and make certified statements 
to be filed and recorded in the office of the county 

1 In New York city, and in counties containing a city of the 
2d class the county board of canvassers is the city board of can= 
vassers (208:1901). 



17:1: ELECTIONS 

clerk. Of the results of the election for presi- 
dential electors, congressmen, state officers, and 
constitutional amendments, he makes 3 certified 
copies and within 5 days mails one to the secre- 
tary of state, one to the governor, and one to the 
comptroller. 

Of the persons elected as county officers, to the 
assembly, and as school commissioners, he sends 
within 20 days after a general and 10 days after 
a special election a Hst to the secretary of state ; 
to whom he also sends before Dec. 15 a certified 
copy of the official canvass by election districts 
of the votes cast in the county. 

The state board of canvassers (see page 210) 
meets on or before the 15th of December after 
a general election, or within 40 days after a 
special election, to canvass the votes, after which 
the secretary of state notifies the persons elected. 

The present system of elections is the result of 
much ingenuity and experiment, and New York 
has omitted no approved safeguard of an honest 
ballot. Her system of registration (see pages 
162, 177) gives both parties opportunity to assure 
themselves that only the qualified voter has op- 
portunity to cast his ballot ; the enclosed booth 
(see pages 167, 170) ensures secrecy while he 
prepares his ballot; the Austrahan or blanket 
ballot gives him the widest liberty of choice as 
to candidates, and prevents detection of the 



ADVANTAGES OF THE NEW YORK SYSTEM 175 

choice he makes. A form of ballot previously 
used was called the paster ballot, provision be- 
ing made for pasting names over those printed 
upon the ballot — an awkward and ineffective 
expedient. In the Australian ballot, the voter 
has all the nominated names before him, with 
hberty and opportunity to substitute any other 
name for any office. 

The effectiveness of the present system was 
shown in the election of 1901 in New York city, 
where the party in power did not carry a single 
office. A ballot that can work an overturn like 
that is capable of working the will of the people, 
and it is the fault of the people if their will is 
not carried out. 



CHAPTEE XVI 

PRIMARY MEETINGS 

Party nominations are made through the pri- 
mary meeting or caucus. 

The history of the caucus is interesting. 
Washington was chosen president without nomi- 
nation, by common consent. In 1796 the federals 
informally agreed to nominate Adams, and the 
democrats to .nominate Jefferson. In 1800 a 
congressional federal, caucus nominated Adams 
and Pinkney and a republican caucus Jefferson 
and Burr.i Similar nominations were made in 
1804. In 1808 the federals made no caucus 
nominations ; but a republican caucus was sum- 
moned by the senator who had presided in 1804, 
thus taking on a feature of permanence. ' In 
1812 the caucus became a '' committee of corre- 
spondence ' ' made up of one member from each 
state; but 70 federal delegates from 11 states 
met in New York and nominated DeWitt Chnton 
for president, thus forming the first national 
convention. ^ 

Members of state legislatures, especially in 
New York and Virginia, also held caucuses to 
nominate state officers; but this was soon ob- 

iB ii.l71. 2B ii. 171-183, 214. 
(176) 



HISTORY OF THE CAUCUS 177 

jected to, on the ground that it threw pohtical 
power into the hands of a few men. In 1817 
the New York repubhcan caucus admitted dele- 
gates from counties that had no representatives 
in the legislature; and soon delegates were ad- 
mitted 'from all the counties, so that a party con- 
vention took the place of the nominating caucus. 

The system has grown till it dominates every 
election, even for town officers. It has afforded 
unscrupulous politicians a means of nominating 
only their own henchmen, and thus of filling 
offices with men who were unscrupulous and 
corrupt. The more respectable voters have often 
neglected the caucus, and sometimes when they 
have attended they have been deprived of their 
rights. Bryce considers this one of the great 
dangers of the repubhc. 

New York, however, has a system of laws 
covering primary elections that affords every 
convenience and safeguard that has been devised. 

There is first for cities and villages of 5,000 
inhabitants, where personal acquaintance can 
not be depended upon, a system of roj^istratioii 
(from Latin re and gerere^ to carry back) that 
ensures every voter the right to cast his vote at 
caucus, and gives assurance that no wrongful 
votes can be counted (133). ^ 

The board of inspectors of each election dis- 

1179:1898; 473:1899; 506:1900; 167:1901. 



178 PRIMARY MEETINGS 

trict (see page 48) makes quadruplicate registers, 
cue copy by each of the 4 inspectors, in which 
the names of the registered voters are entered 
alphabetically, with 19 columns giving such 
full information as should prevent any possibility 
of fraud. 1 Only those duly registered to vote 
may participate in primaries, and in a separate 
envelope they may register for the primaries at 
the same time they register to vote. 

The general county committee of each party 
is elected at the annual primary meetings in 
September, ^ either directly or by conventions of 
delegates elected at this time. 

Bryce says (ii.l09) that of the lOOT primaries 
and conventions held in New York city prepara- 
tory to the elections of 1884, 633 took place in 
liquor saloons ; but the present New York law for- 
bids holding a primary within 300 feet of a saloon. 

The auiiual primary day is the Yth Tuesday, in 
leap years the 10th Tuesday, before the general 
election. 

In presidential years there is an additional 
official primary day, the last Tuesday in March. 

While the smaller local officers are filled 
directly by the primary meeting, it would be 
impracticable for all the voters to gather to 
nominate for county and other offices, and so by 
the representative system the primary meeting 
elects delegates to a nominating convention. ^ 

1113:1901. 2 167:1901. ^B ii.80. 



THE NEW YORK SYSTEM 179 

Thus a town caucus nominates delegates to an 
assembly district convention, which nominates 
delegates to a state convention, which nominates 
delegates to the national convention at which 
candidates for president and vice-president are 
nominated. 

At a nominating convention a temporary 
chairman is elected, who appoints a committee 
on credeutials. When the accredited delegates 
are determined on, a permanent chairman is 
elected, and the convention is duly organized. 
After it has made its nominations, and perhaps 
passed resolutions expressing its sentiments on 
certain jfolitical issues, it adjourns and vanishes, 
the rest of the business of the campaign being 
in the hands of the committee (see page 183). ^ 

It is usually felt that all the delegates are 
bound by the action of the caucus or conven- 
tion, though sometimes those who have failed to 
nominate their candidate " bolt " the ticket, 
nominating an independent candidate or voting 
for the candidate of the other party. ^ 

The importance of the primary meeting is 
manifest, since unless respectable voters attend 
and vote, all control is left in the hands of the 
unscrupulous. ^ So, too, citizens should be will- 
ing to serve as delegates to the many nominating 



B ii.81. 82. 90. ^ b ii.84. ^ b ii.108. 162. 169. 183. 



ISO PRIMARY MEETINGS 

conventions, not grudging the time and travel- 
ling required to secure the best candidates. ^ 

The state even in the constitution (135) recog- 
nizes political parties. Bryce says (ii.74): 

" There are three ways by which in self-gov- 
erning countries candidates may be brought 
before electors. One is by the candidate's offer- 
ing himself, appealing to his fellow -citizens on 
the strength of personal merits, or family connec- 
tions, or wealth, or local influence. This was a 
common practice in most English constituencies 
till our own time ; and seems to be the practice 
over parliamentary Europe still. 

'' Another is for a group or junto of men in- 
fluential in the constituency to put a candidate 
forward, intriguing secretly for him or openly 
recommending him to the electors. This also 
largely prevailed in England, where in countries 
four or five of the chief land owners used to 
agree as to the one of themselves who should 
stand for the county ; or chose the eldest son of 
a duke or a marquis as the person whom his 
rank designated. So in Scotch boroughs a little 
knot of active bailies and other citizens combined 
to bring out a candidate, but generally kept their 
action secret, for ' the clique ' was always a term 
of reproach. The practice is common in France 

iBii.383. 



POLITICAL PARTIES 181 

now, where the committees of each party recom- 
mend a candidate. 

^ ' The third system is that in which the candi- 
date is chosen neither by himself nor by the self - 
selected group, but by the people themselves, i. e. 
by the members of a party, whether assembled 
in mass or acting through representatives chosen 
for the purpose. This plan offers several ad- 
yantages. It promises to secure a good candi- 
date, because presumably the people will choose 
a suitable man. It encourages the candidate, by 
giving him the weight of party support, and 
therefore tends to induce good men to come for- 
ward. It secures the union of the party, be- 
cause a previous vote has determined that the 
candidate is the man whom the majority prefer; 
and the minority are therefore likely, having 
had their say and been fairly out- voted, to fall 
into line and support him. This is the system 
which now prevails from Maine to California, 
and is indeed the keystone of transatlantic 
pontics." '' Numbers without organization are 
helpless and with it omnipotent. " ^ 

He says again (ii.38): ''What constitutes a 
party? In America there is a simple test. Any 
section of men who nominate candidates of their 
own for the presidency and vice- presidency of 
the United States are deemed a national party. " 



Bii.lO. 



182 PRIMARY MEETINGS 

In New York to be recognized as a party, an 
organization must have cast at the last election 
for governor at least 10,000 votes. ^ 

In England parties date from the struggle 
of the Stuart Kings with the puritan party in 
the house of commons, and in the reign of 
Charles II began to be known as whigs and 
tories. ^ 

'' The essence of the English parties has lain 
in the existence of two sets of views and. tenden- 
cies which divide the nation into two sections — 
the party, let us say, though these general terms 
are not very safe, of movement and the party 
of standing still, the party of hberty and the 
party of order. "^ 

In America the fundamental distinction of 
parties has been the same — between progressives 
and conservatives; between those who favor a 
strong government and those who are more in- 
tent upon preserving individual liberty ; between 
those who say the United States is and those 
who say the United States are (see page 338). 

Alexander Hamilton wanted a strong govern- 
ment, and thought first of order; he founded a 
party known first as federalist, then as national 
republican, then as whig, and since 1856 as 
republican. Thomas Jefferson feared centraliza- 
tion of power, and thought first of liberty. ^ 

1664:1901. -'Bii.SO. ^ g ii.21. ^ B ii.6. 



PARTY MACHINERY 183 

His party was first called republican, but since 
1830 has been known as democratic. ^ 

These are only general distinctions; many 
other issues have arisen and have divided the 
parties on other lines, such as foreign policy, a 
United States bank, slavery, and free trade. 
Additional parties have been founded; nine 
parties nominated candidates for president in 
1900. But this general line of cleavage has al- 
ways divided the country into two great parties, 
and is hkely always so to divide it. ^ 

This is in many ways advantageous. When 
parties have nearly equal support, the party out 
of power keeps a close watch upon the party in 
power, which in turn is compelled to avoid cause 
for criticism. 

Party organization results in party machinery. 
Each party has national, state, congressional, 
county, town, city, ward, and other commit- 
tees. ^ These committees aim to keep peace in 
the party, preventing dissensions and schisms; 
to bring in new voters, sometimes from the 
opposite party, but oftener those coming of age 
to vote, or just naturalized, or new-comers ; and 
to keep up interest in the party by speeches and 
hterature.^ A close record is kept of every 
voter in every district ; and if there is a possi- 



iBii.ll. • Bii.16, 20. 3311^73. '-Bii.73. 



1S4 PRIMARY MEETINGS 

bility of bringing him within the party, no pains 
is spared to do so. ^ 

This involves a good deal of work, so much 
that some men give it practically their entire 
time ; and these become professional politicians 
(from Greek polites ; see page 28), who attend 
caucuses, and see that their adherents attend, 
get chosen as delegates, secure offices for them- 
selves and their friends, and always have some- 
thing definite and clean-cut to suggest when the 
general public is purposeless and ready to be 
led.^ 

The word politician is not necessarily a term 
of reproach. There is truth as well as satire in 
the definition of Thomas B. Reed that a states- 
man is a successful politician who is dead. Alex- 
ander Hamilton, of whom Talleyrand said that 
only Fox and Napoleon were his equals, was. in 
his own time called derisively the stepfather of 
his country. ^ 

But if the rest of the.community is to abandon 
the management of politics to those who carry 
it on to make a living, the standard becomes low. 

Bryce says (ii.383): ''Those who study these 
questions most critically and think the most care- 
fully fear more for the republic from the indiffer- 
ence of the better classes than the ignorance of 
the lower classes. We hear endless talk about 

1 B ji.73, 79. 2 3 i 6 . ij gg^ 283. ^ B ii.7, 8. 



POLITICS 185 

the power of the labor vote, the Irish vote, the 
German vote, the granger vote, but no combina- 
tion at the ballot-box to-day is as numerous or 
as powerful as the stay-at-home vote." 

And again (ii.46T) : '' The deepest deficiencies in 
our system of government are the prominence 
of inferior men in politics, and the absence of 
distinguished figures. * * * if the natural 
leaders of the community are absorbed in pri- 
vate business, shrink from what they call the 
regularities of practical politics, and refuse to 
sacrifice their time and tastes and comfort in the 
struggle with wire-pullers and demagogues^ the 
latter will prevail, and what is known as ' the 
machine ', with a ' boss ', sitting like a spider 
in the midst of his web " becomes all-powerful." 

'^ What the client was to his patron at Eome, 
what the vassal was to his lord in the Middle 
Ages, that the heelers and workers are to their 
boss in these great transatlantic cities. They 
render a personal feudal service, which their 
suzerain repays with the gift of a livelihood ; and 
the relation is all the more cordial because the 
lord bestows what costs him nothing, while the 
vassal feels that he can keep his post only by the 
favor of the lord. " ^ 

When the bosses of the two parties unite forces 
under an agreement to divide the spoil, we have 

1 B ij. 1 08. 



ISf) PRIMARY MEETINGS 

what is called a ring. '' The typical boss regards 
the boss of the other party much as counsel for 
the plaintiff regards counsel for the defendant. 
They are professionally opposed, but not neces- 
sarily personally hostile. "^ When a ring has 
fastened its clutches on a city or a state, it is 
seldom dislodged till some shocking abuse of 
power awakens the entire community to a sense 
of danger. 

The organization being thus formed and in 
working trim, it is extended beyond the national 
and state issues with which the party is properly 
concerned to those of city and village and town, 
as though there could be such a thing as a repub- 
lican gas lamp or a democratic asphalt pave- 
ment. 2 

The only safety lies in the general recognition 
in the community of the duty to attend primary 
meetings, and thus secure that only safe men 
are nominated for office. At present this duty 
is even more important than that of voting at 
elections. It is usually easier to work within 
the party than to try to form a third party ; and 
when those determined upon good government 
are as active and as untiring as those in control 
they are pretty sure to arouse public sentiment 
sufficiently to carry the primary. ^ Failing in 
this reformers sometimes nominate an inde- 

1 B ii.llO. 2]3 i 543^ jj 51 3 ^^^qo ^qq 



THE voter's most IMPORTANT DUTY 187 

pendent set of candidates, or persuade the op- 
posite party to nominate men personally unob- 
jectionable. In New York great parties are so 
evenly balanced that the independent element is 
always large enough to turn the scale. 



CHAPTER XVn 

THE GOVERNOR 

When the colonies became states, they all con- 
tinued the office of governor, making him elected 
by the people instead of appointed by the 
crown. 1 It was the one colonial office that had 
universally justified itself. 

Bryce says (i.276; see also 271, 283, 293, 509): 
*' In these colonies the executive power had been 
vested either in a governor sent from England 
by the crown, or in certain proprietors, as they 
were called, persons to whom the English crown 
had granted hereditary rights in a province. 
Along with these authorities there had existed 
representative assemblies, who made laws and 
voted money for the purposes of their respective 
commonwealths. They did not control the gov- 
ernor because his commission issued from the 
British crown, and he was responsible thereto 
and not to the colonial government. A gover- 
nor had no parliamentary cabinet, but only offi- 
cials responsible to himself and the crown. His 
veto on acts of the colonial legislature was fre- 
quently used ; and that body, with no means of 

iBi.459. 

(189) 



190 THE GOVERNOR ' , 

controlling his conduct other than the refusal 
to vote money, was a legislature and nothing 
more. Thus the Americans found and admired 
in their colonial (or state) systems, a separation 
of the legislative from the executive branch, 
more complete than in England, because in the 
colonies no ministers sat in the legislature. And 
being already proud of their freedom, they 
attributed its amplitude chiefly to this cause." 

In Connecticut and in Ehode Island the gover- 
nor had been elected by the people, and in these 
colonies the governor did not have the power of 
veto. 

The power of the state governors was how- 
ever much more restricted, i A colonial gOTernor 
" could convene and dissolve the assembly; 
could suspend members and fill vacancies ; could 
erect courts, appoint justices of the peace, and 
pardon all offences, — treason and murder alone 
excepted. " 2 

A state governor has the powers of veto and 
of pardon ; he has command of the mihtia, and 
may recommend legislation. But local legisla- 
tion controls and local ofPxcers execute so large a 
part of the government of the state that except 
in emergencies his authority is comparatively 
narrow^ (see page 102). 

Yet the office has great dignity. In the early 

1 B i.277, 508. 2 Prentice 140, 258, 469. ^ Hadley, 80. 



QUALIFICATIONS AND ELECTION 191 

days of the nation a governor sometimes re- 
fused to yield precedence to the president; in 
1795 John Jay resigned his place as chief justice 
to become governor of New York. ^ 

The qualifications required in New York are (1) 
that he be a citizen of the United ^States, (2) a 
resident of the state for the past 5 years, and (3) 
at least 30 years old (184). The salary is ^10,000 
and a furnished residence (186). The term is 2 
years (183). It was 3 years till 1821; then 2 
years till 1874; then 3 years till 1894. 

The election is by plurality vote at the general 
election; but in case the two candidates receiv- 
ing the most votes have an equal number, the 
legislature at its next session by joint baUot 
chooses one of the two for governor (185). 

He is the executive officer of the government ; 
' ' he shall expedite all such measures as may be 
resolved upon by the legislature, and shall take 
care that tl^e laws are faithfully executed (186)." 

In the veto (191) he has legislative power, and 
this is treated under the head of the legislature, 
on page 242. His power to convene the legisla- 
ture and to suggest legislation is often important. 
Bryce says (i.509): " In a commercial crisis, like 
that which swept over the union in 1837, when 
the citizens are panic-stricken and the legislature 
hesitates, much may depend on the initiative of 

1 B A75, 509. 



102 THE GOVERNOR 

th(^ governor, to whom the eyes of the people 
naturally turn. His right of suggesting legisla- 
tive remedies, usually neglected, then becomes 
insignificant, and may abridge or increase the 
difficulties of the community. ' ' 

He appoints several thousand officers ; some of 
the most important of them are named on pages 
196, 202-209. 

He may also remove many officers for cause, 
as is frequently noted in the following pages. 

But this power is his only when it is expressly 
conferred upon him. He can not interfere even 
with an election inspector who performs his 
duties properly. He is the highest officer in the 
state, but he is not a master ; he is like all other 
officers the servant of the people, and his powers 
are limited to those named in constitution and 
statute. 

Bryce says (i.239) : '^ In free countries an indi- 
vidual citizen is justified in disobeying the orders 
of a magistrate if he correctly thinks his orders 
to be in excess of the magistrate's legal power, 
because in that case they are not really the orders 
of a magistrate, but of a private person affect- 
ing to act as a magistrate. In England, for 
instance, if a secretary of state, or a pohce con- 
stable, does any act which the citizen affected by 
it deems unwarranted, the citizen may resist, by 
force if necessary, relying on the ordinary courts 



POWERS 193 

of the land to sustain him. This is a conse- 
quence of the Enghsh doctrine that all executive 
power is strictly limited by law, and is indeed a 
corner-stone of English liberty." 

The governor represents the state in its deal- 
ings with other states (72) and with the federal 
government. He has the power of extradition 
(see page 554). When a criminal escapes from 
one state to another, the governor of the former 
makes upon the governor of the latter a requisi- 
tion (see page 554) for his delivery to the former 
state, and this the governor usually grants (74). 

In the case of a criminal he may pardon (from 
Latin per, perfectly, and donare, to give — to 
grant full release from the punishment), reprieve 
(from Latin re and probare to try, to postpone 
the execution of a death sentence), or commute 
(from Latin com and mutare, to change, to ex- 
change it for one of less severity) the sentence, 
except in (?ase of treason, when he may only 
suspend sentence till the next meeting of the 
legislature ; and in cases of impeachment, where 
he has no authority (187). 

This power formerly belonged to kings, as the 
fountain heads of justice. It has often proved 
pernicious. 

He is commander in chief (186) of the militia 
(from Latin miles, a soldier). Every able-bodied 
resident of the state between the ages of 18 



19-1 THE GOVERNOR 

and 45 is liable to service in the militia (269), 
and though in time of peace only those are 
Hable who voluntarily enlist (270), in time of 
war all those liable may be called upon. They 
are known as the enrolled militia. 

The states are not allowed to maintain a 
standing army (52), which is a permanent force 
of soldiers with no other occupation. The 
active or enlisted militia of New York is made 
up of not less than 10,000 enlisted men, uni- 
formed, armed, equipped, and drilled, and ready 
for active service (271); but in ordinary times 
giving only an occasional evening and now and 
then a day for drill or a week for encampment. 

A national law passed in 1792 and unrepealed 
but of course long disregarded requires every 
able-bodied citizen between the ages of 18 and 
45 to be " constantly provided with a good mus- 
ket or firelock, of a bore sufficient for balls the 
18th part of a pound, a sufficient bayonet and 
belt, 2 spare flints and a knapsack, a pouch with 
a box therein to contain not less than 24 cart- 
ridges ", or ^'a good rifle, shot pouch and pow- 
der horn, 20 bafls and J lb. of powder ", and that 
"each officer shaU be armed with a sword or 
hanger and a spontoon." 

The right to carry weapons is affirmed by the 
national constitution (85). Many states how- 



CHIEF OF 'the militia 195 

ever forbid the carrying of concealed weapons. 

Some are exempt from military duty in time 
of peace, such as clergymen, physicians, judges 
and clerks of courts of record, pilots, mariners, 
railway conductors and engineers, etc. ^ 

In the early days of the republic the militia 
was trained chiefly at the annual muster (from 
Latin monstrare, to show), where the men from 
all over the state gathered for a week's drill (see 
page 62). This proved insufficient, and at pres- 
ent there are companies of enlisted men who are 
drilled in state armories in all cities and princi- 
pal villages, where full equipments are provided 
and kept. These companies are known in New 
York as the national guard. 

Commissioned officers are those holding com- 
missions (from Latin con and mittere, to send 
with, to entrust). They may not be removed 
from office during the term for which appointed 
or elected unless (1) by the senate on recom- 
mendation of the governor, (2) by the sentence 
of a court-martial, (3) upon the findings of an 
examining board, or (4) for absence without leave 
for a period of 6 months or more (271). 

The manner of choosing the officers of militia 
regiments has been fixed by statute (273) as fol- 
lows: (1) The privates of a company elect the 
officers of the company. 

1212:1898. 



IDtJ THE GOVERNOR 

(2) The commissioned officers of the various 
companies elect the field-officers of the regiment 
or hattahon. 

(3) The field officers of the regiment or bat- 
talion elect the brigadier generals and brigade 
inspectors. 

(4) The governor appoints with approval of 
the senate the major generals and the commis- 
sary general ; and absolutely the military secre- 
tary, the adjutant general, chiefs of staff depart- 
ments, and his own aides-de-camps (273). 

(5) Staff officers are appointed by the com- 
manding officer of the regiment or battahon. 

It will be seen that this system is thoroughly 
representative. Officers are however after elec- 
tion required to pass an examination in Enghsh ; 
geography, especially of New York state; arith- 
metic ; American history ; and military discipline 
and tactics. 

The national constitution ordains (41) that 
congress may provide for organizing, arming, 
and disciplining the mihtia, may prescribe the 
discipHne for training, and may provide for gov- 
erning such part of them as may be employed 
in the service of the United States. This is of 
course necessary, so that when troops are assem- 
bled from different states they may be familiar 
with the same drill. 

Congress has power to call out the militia to 



CHIEF OP THE MHJTIA 197 

execute the laws, to supress insurrections and 
to repel invasions (rtO), and has delegated this 
power to the president; but this refers to the 
militia in its general sense, as embracing the 
able-bodied men between 18 and 45. The presi- 
dent has no control over mihtia regiments. 
When men are called for, however, it is custom- 
ary for the state to enhst them through the 
machinery of these companies, the members 
having opportunity to enhst f6r United States 
service, and the places of the rest being filled by 
enlistment from outside. 

In the war with Cuba enlistment provided 
sufficient men; but during the civil war the 
number of men required was so great that it be- 
came necessary to resort to conscription (from 
Latin con and scribere, to write), the number 
required being chosen by draft (from Anglo- 
Saxon dragan, to draw) from the entire number 
of citizens liable, those drafted being compelled 
to go or to furnish substitutes. 

The mihtia has been called out 5 times : in the 
whiskey rebelhon of 1794, in the war of 1812, 
in the civil war of 1861, in the Spanish war, 
and to suppress the Philippine insurrection. 

At the close of the civil war the militia in the 
United States service numbered more than a 
million. 

During the civil war the governors were of 



198 THE GOVERNOR 

immense importance, and those like Morgan of 
New York and Andrews of Massachusetts who 
responded promptly to the president's calls for 
troops were among his most powerful assistants. 

When necessary to preserve the peace the 
militia may be summoned by the governor, by 
the mayor of a city, or by the sheriff. Prompt 
action is in such cases of the greatest importance. 
Bryce says (i.509): ''In the Pennsylvania riots 
of 1877 it was the accidental absence of the 
governor on a tour in the west which enabled 
the forces of sedition to gather strength. Dur- 
ing the most recent disturbances which large 
strikes, especially among railway employes, have 
caused in the west, the prompt action of a gov- 
ernor has preserved or restored tranquiUity in 
more than one state ; while the indecision of the 
governor of an adjoining one has emboldened 
strikers to stop traffic, or to molest workmen 
who had been hired to replace them." 

Sometimes the local and state forces are in- 
sufficient to preserve peace, and then the legisla- 
ture, or the governor if the legislature is not in 
session, may call on the president for aid (see 
page 348). 

This happened during Dorr's rebeUion in 
Ehode Island. 

The required qualifications and manner of 
election of the lieutenant governor are the same 



THE MEUTENANT GOVERNOR 199 

(183-185^ 189) as those of governor (see page 
191). His principal dignity is the possibihtj of 
his succeeding to the duties of governor, should 
the latter die, or resign, or be otherwise unable 
to perform his duties (188, 189). If he dies or is 
incapable of filling the office of governor, or is 
absent from the state, the duties of the governor 
are performed by the president pro tem. of the 
senate (see page 230), or if he for like reasons is 
unable tp assume them, by the speaker of the 
assembly (189; compare page 370). 

He is president of the senate, and in case of 
tie has the casting vote (189), but not other- 
wise, since he is not an elected member. He 
serves on various boards (see page 210). His 
salary is $5,000 (190). 

Por comparison of the governor's power with 
that of the president see page 3T9. 



CHAPTER XVIIl 

state administrative officers 

(1) Elected by the People 

Besides the governor and lieutenant governor, 
the people elect every 2 years 5 administrative 
officers (192) as heads of the principal depart- 
ments of the state business. The elections come 
in the even-numbered years (193). The salary 
of comptroUer is 16,000 ; of the other four S5,000. 

The secretary of state keeps the records, books, 
deeds, maps, etc., of the state; attests the sig- 
nature of the governor; files the laws passed 
by the legislature and supervises their pubhca- 
tion; sends notices of election, receives the elec- 
tion returns, and notifies persons elected; re- 
ceives and records all pardons; and reports 
annually to the legislature statistics of pauper- 
ism, crime, and other subjects as required. 

The comptroller (see page 104) is one financial 
manager of the state. He directs and superin- 
tends the collection of taxes and other amounts 
due the state (see page 69) ; audits, examines, and 
directs payment of claims against the state ; and 
negotiates temporary loans when necessary. He 
reports to the legislature the receipts and expen- 
ditures for the past year, with estimate for the 
coming year, 

(200) 



ELECTED ADMINISTRATIVE OFFICERS 201 

The fact that he receives 11,000 more salary 
than any of the other elected administrative 
officers, shows how important his duties are 
considered. 

The treasurer (see page 69) keeps the state's 
bank account. He receives and guards the 
moneys of the state, and pays them out upon 
warrants drawn by the comptroller, the auditors 
of the canal department, or the superintendents 
of the banking department and of the depart- 
ment of public instruction. No money may be 
drawn from the treasury except by specific appro- 
priation (174^ 49). He may be suspended by the 
governor and another person appointed (198). 

The attorney-general corresponds with the 
county district attorney (see page 78). He prose- 
cutes and defends all suits to which the state is 
a party; is the legal advisor of the legislature 
and of the other state officers, and prepares 
drafts of contracts, etc., needed; and prosecutes 
criminals in the supreme court when required. 

The state engineer and surveyor must be a 
practical civil engineer (192). He superintends 
the survey and sales of state lands, and^ keeps 
all records of survey ; he inspects the canals and 
appoints division engineers upon them. 
(2) Elected by Joint Ballot 

The superintendent of public instruction (see 
page 309), like the regents of the university (see 



202 APPOINTED STATE ADMINISTRATIVE OFFICERS 

page :>18), and United States senators (see page 

4-"):)) is elected by joint ballot of the legislature. 

(3) Appointed by the Governor with Consent 

OF THE Senate 

The state pays higher salaries to some officers 
appointed by the governor with consent of the 
senate than to those elected by the people. 

The superintendent of insurance, for instance, 
gets $7,000 a year; but this is paid by fees from 
the insurance companies, ^ which it is his duty 
to investigate, and which must have his author- 
ization. His term is 3 years. 

The superintendent of banking investigates 
banks and trust companies, which report to him 
quarterly. If he finds them insolvent, he closes 
them. 

His salary of $7,0002 is collected from them.s 
His term is 3 years. 

The superintendent of public works (194) has 
charge of the public works of the state, the most 
important of which are the canals, of which he 
appoints all the officers and workmen. His term 
expires with that of the governor who nomin- 
ates him, and who may suspend or remove him. 
His salary is $6,000. He performs all the duties 
of the former canal commissioners (194). See 
page 211. 

The state architect has architectural charge of 
all the buildings constructed by the state. 

1690:1892, 2 134:1897. » 472:1901. 



THE RAINES LAW 203 

The excise commissioner has control of the 
operation of the Hquor tax law (known as the 
Eaines law)i. He appoints a deputy; special 
deputies for the larger counties; and not to ex- 
ceed 60 special agents to investigate all matters 
pertaining to the sale of liquors. Taxes are 
collected on May 1 of each year as follows : 

In places having a popu- 
lation exceeding 1,500,000 500,000 50,000 10,000 5,000 1,200 Others 

Liquor to be drunk on the 
premises $800 $650 $500 $350 $300 $200 $100 

Liquor not to be drunk on 
the premises, in quan- 
tities not less than 5 
gallons 500 400 300 200 100 75 50 

In counties where there is a city of the first 
class these taxes are paid to the special deputy 
commissioner ; in all other counties to the county 
treasurer, who receives as compensation 1 ^ in 
counties containing all or part of a city of the 
1st or 2d class, 2 ^ in those containing a city of 
the 3d class, and 3 ^ in all others. Of the 
amount collected J less cost of ^collection is paid 
to the general tax revenue of the state, and | 
to the town or city where collected. The term 
of office is 5 years and the salary $5,000, with 
$1,800 in lieu of expenses. 

The superintendent of state prisons (195) has 
control of the state prisons, of which he appoints 
the agents, wardens, physicians, and chaplains, 
all other officers of the prisons being appointed 

1112:1896. 



2(U APPOINTED STATE ADMINISTRATIVE OFFICERS 

by the agent and warden, except the clerk, who 
is appointed by the comptroller. His term is 5 
years, but he may be removed by the governor. 
His salary is 86,000. 

The coiiiiiiissioiier of labors inspects the manu- 
factories of the state, and secures labor statistics, 
reporting upon the same. 

His term is 4 years, and his salary $3,500. 
He has the appointment of 2 deputies at |2, 500, 
who with him form a board of mediation and 
arl)itratiou, whose duty it is so far as possible to 
prevent and adjust labor strikes. 

The state agricultural commissioner promotes 
farming interests by inspecting butter and cheese 
factories, appointing 5 expert butter and cheese 
makers to attend fairs and explain improved 
methods. He suppresses contagious diseases 
among cattle, killing them when necessary, the 
owners to get compensation from the court of 
claims. He also appoints inspectors to examine 
into diseases of trees and fruits. He has charge 
of the state weather bureau. The state agricul- 
tural experiment station at Geneva reports to 
him. 

His term is three years and his salary $4,000, 

with not to exceed |500 for necessary expenses. 

The legislature of 1901 appropriated 1100,000 

19:1901. 



BOARDS AND COMMISSIONS ^05 

for the expenses of the state fair commission, for 
the state fair held annually in Syracuse. 

The commissioner of health ^ is the head of the 
department of health, and must be a graduate 
of an incorporated medical college with at least 
10 years experience as a physician. He makes 
inquiry as to the causes of disease and the effect 
of localities, employments, and other conditions 
upon the public health. He may reverse or 
modify an order of a local board of health, and 
appoint a health officer where the local board 
fails to do so. He reports public nuisances to 
the governor. There is in the department a 
bureau of vital statistics, to register marriages, 
births, and deaths. 

The term is 4 years, and the salary $3,500 and 
expenses. 

The health offtcer of the port of New York must 
be a doctor of medicine of 10 years experience, 
and is resident physician of the Swinburne island 
hospital. In conjunction with the quarantine 
commissioners he maintains the quarantine regu- 
lations of the port (see page 207). His term is 
4 years, and his salary $12,500. 

Boards and Commissions 

Much of the administrative work of the state 
is done by boards or commissions. They are 



29:1901. 



200 APPOINTED STATE ADMINISTRATIVE OFFICERS 

all appointed by the governor and confirmed by 
the senate except as otherwise noted. 

The court of clayns audits private claims 
against the state and of the state against private 
persons, and decides what amount is due. It 
meets at Albany on the 2d Tuesdays of January, 
April, September, and November, and holds ad- 
journed sessions elsewhere as it may determine. 
The attorney general or a deputy attends each 
session in behalf of the state. 

There are 3 members, 2 and only 2 of whom 
must be practising attorneys and counsellors in 
the supreme court. The term is 6 years and the 
salary ^5,000. 

The board of charities (251) visits and inspects 
state and local institutions of a charitable, 
eleemosynary, correctional, or reformatory char- 
acter. It makes contracts for the maintenance 
of state paupers. 

It is composed of 12 members, 1 from each 
judicial district with 1 additional from Kings 
and 3 from New York. The term is 8 years, 
and the members receive no salary. 

A commission of prisons (251) visits and in- 
spects all institutions for the detention of sane 
adults charged with crime. The president, who 
is designated by the governor, receives a sal- 
ary of ^2,500, and the other two serve without 



BOARDS AND COMMISSIONS 



207 



pay, all being reimbursed for their expenses. ^ It 
appoints a clerk, at a salary of $3,000, and other 
employes. The term is 4 years; but when a 
state officer is appointed, his appointment ter- 
minates when his term of office expires. 

The board of railway commissioners has duties 
in reference to railways similar to those of the 
superintendents of insurance and banking. It 
may examine the books of all companies, and 
must examine into the causes of accidents that 
injure persons. It reports to the attorney general 
any evidences of unsatisfactory management, 
and makes an annual report to the legislature. 

There are 3 commissioners. The term is 5 
years, and the salary $8,000. One is selected 
from each of the two great political parties ; the 
third upon a recommendation of a majority of 
the New York chamber of commerce, board of 
trade and transportation, and national anti- 
monopoly league. 

The board of tax commissioners investigates 
the methods of assessment within the state, fur- 
nishes local assessors with necessary information, 
visits every county of the state at least once in 
2 years, to see that all property not exempt is 
assessed at full value, hears appeals from any 
supervisor who thinks his town unjustly treated 
in equalization of taxes (see page 65), etc. 

1 12:1901. 



20S APPOINTED STATE ADMINISTRATIVE OFFICERS 

The 3 quarantine commissioners, with the health 
officer of the port of New York, examine in- 
comiDg vessels to prevent the introduction of 
contagious disease. All vessels are stopped at 
the station on Staten island. If contagious 
disease is found those affected are moved to a 
floating hospital, and the vessel is fumigated and 
disinfected. 

The term of ofi&ce is 3 years and the salary 
82,500.1 

The state assessors visit each county at least 
once in 2 years, and prepare facts for the board 
of equalization. They have power to subpoena 
witnesses, and to demand information of all 
local officers. 

There are 3, appointed for 3 years; salary 
12,500. 

The commission in lunacy (251) visits and in- 
spects public and private institutions for the 
treatment of the insane. It supervises the ex- 
penditures of public institutions, and licenses 
private ones. It appoints physicians as ex- 
aminers in lunacy. 

It consists of 3 citizens of the state, of whom 
the president must be a graduate of an incor- 
porated medical college with 1 years experience 
as a physician, and 5 years experience in the 

4 268;1900. 



BOARDS AND COMMISSIONS 209 

treatment of mental and nervous diseases, or 2 
years experience in treatment of the insane. 
Another must be an attorney of not less than 10 
years standing. 

The term is 6 years, and the salary is $5,000, 
with $1,200 for expenses. ^ 

The state hospitals for the insane are located 
as shown on the map on page 561. 

Each hospital is managed by a board of 7 
managers appointed by the governor. 

The civil service comiiiissiou conducts the civil 
service examinations of the state (see page 381), 
certifying who have passed successfully and in 
what order. It also inspects the civil service 
examinations conducted by the municipal civil 
service commissioners appointed by the mayors 
in cities (see page 109). It meets in Albany at 
least once in every month except August. 

There are 3 commissioners, not more than 2 
of the same political party, at a salary of $3,000^ 
and necessary travelling expenses. They appoint 
a chief examiner at $3,600. The term of office 
is unlimited, but any member may be removed 
by the governor. 

In New York the constitution provides (200) that 
while the examination shall be as far as possible 
competitive, honorably discharged soldiers and 
sailors of the civil war are entitled to preference" 

^^ 1137:1901. 2 66.1900. 



210 



EX-OFFICIO STATE BOARDS 



The forest, flsli, and game commissiou has charge 
cf the propagation and distribution of food and 
game fish and shell fish. It consists of a com- 
missioner appointed for 4 years at $5,000 a year, 
and 2 associate commissioners who with him 
form the forest preserve board, whose duty it is 
to acquire for the state such lands in the Adiron- 
dack park or the forest reserve ^ (see page 567) 
as it may deem advisable. These associates serve 
only till Jan. 1, 1903, after which the 2 associates 
are to be appointed by the governor from the 
commissioners of the land office (see page 211). 
(3) Ex-OFFicio Appointments 

The following state boards are made up of 
state officers whose duties on these boards are 
ex-officio (Latin, on account of office). 



NAME OF BOARD 



■< s:: 





1 




■? 

2 
^ 
■^ 




2 

1 



'^ 



'^ 



board of canvassers 

coniniissioners of canal fund. 

canal board 

commissioners of land ofTice. 

board of classification 

board of equalization * 

trustees of yuljlic buildins^s.. 
regents of the university t.. . . 







1 




1 


1 


1 










1 


1 




1 


1 












1 


1 




1 


1 


1 




1 




1 


1 


1 




1 
1 


^ 


1 


1 




1 

1 


1 


1 
















1 


1 


1 


1 










1 







1 608:1900. 
* The tax commissioners are also included (see page 203). 
t Partly e.v -officio and partly elective. Includes sup't public instruc- 
tion. See page 318. 



CANVASSERS; CANALS, CLASSIFICATION 211 

The bpard of canvassers meets on Dec. 15 after 
each general election, and within 40 days after 
each special election, and canvasses the certified 
statements of the county boards of canvassers^ 
tabulates the results, and files them with the 
secretary of state, who thereupon transmits a 
copy to each person elected. ^ 

The commissioners of the canal fnnd (196) have 
charge of (1) the canal fund, made up of the 
real estate belonging to the canals, and moneys 
received for sale of lands, surplus waters, and 
fines ; and (2) the canal debt sinking fund. 

The canal board (196) has general charge of the 
state's property in canals, as the superintendent 
of public works (see page 202) has of the work- 
ing of the same. It determines whether lands 
caken for canals have been abandoned, or may 
be sold advantageously, investigates all transac- 
tions concerning canals, examines plans made by 
the state engineer, etc. 

The canals are shown on page 563. They are 
forever to remain the property of the state and 
under its management (238). No tolls are to be 
exacted (239), and provision is made for their 
improvement (240). 

The commissioners of the land office (196) have 
the general care of all lands owned by the state. 

The board of classification ^ fixes the prices at 

1379:1897. 2418:1901. 



2V2 EX- OFFICIO STATE BOARDS 

which all labor performed and all articles manu- 
factured in the charitable institutions are fur- 
nished to the state or its institutions, except that 
prices of articles furnished by penitentiaries to 
the counties in which they are situated shall be 
fixed by the supervisors (in Kings and New 
York counties, by the commissioners of charities 
and correction). The board determines the 
styles, patterns, designs, and qualities of the 
articles to be made. For restrictions see 182. 

The board of equalization is made up of the 
commissioners of the land office (see page 211), 
and the 3 commissioners of taxes (see page 206). 
It meets at Albany on the 1st Tuesday of Sep- 
tember in each year, to examine and revise the 
valuations of real and personal property of the 
several counties as returned to the board of tax 
commissioners, and to fix the aggregate amount 
of assessment for each county, upon which the 
comptroller is to compute the state tax. 

The trustees of public buildings have charge of 
the capitol, state haU, geological hall, executive 
mansion, etc., and allot space to the different 
departments. They appoint a superintendent of 
public buildings, with a term of 2 years and a 
salary of $5,000. He appoints the employes of 
the maintenance department at salaries fixed by 
the trustees. 



CANVASSERS; CANALS; CLASSIFICATION 213 

The salaries of clerks and other employes of 
the state were fixed in 1901 ^ as follows : 

Grades 1 2 3 J^ 5 6 7 8 9 10 

$360 $480 $600 $720 $900 |1200 $1500 $1800 $2100 $2400 

Original appointment is to be so far as possible 
in the 1st grade, and no higher grade is to be 
filled from outside if there is a person employed 
in a lower grade competent for promotion. No 
promotions are to be made except of those who 
have served 6 months in the next lower grade. 

For tabulated list of state officers see page 5. 

1521:1901. 



CHAPTEE XIX 

HISTORY OF LEGISLATION IN NEW YORK 

We have seen (page 125) how parhament grew 
to supreme control in England, and became the 
model for the legislatures of the colonies. The 
history of the growth of legislative power in 
New York is especially interesting. 

The first charter of New York was granted in 
1614 by the legislature of the Dutch Eepublic to 
the Amsterdam company, but was superseded 
in 1621 by a more distinct charter granted to 
the Dutch West India company, which practi- 
cally governed New York until it came under 
control of the Enghsh in 1664. The first formal 
government was established in 1626 under Gov. 
Peter Minuit, who with a council of 5 men^ a 
secretary, and a sheriff had entire legislative, 
executive, and judicial power, subject only to the 
chamber of deputies at Amsterdam. 

The council of twelve, 1641.— In 1641 Gov. 
Kief t feared , a general Indian war, and sum- 
moned all the heads of famihes to a council, 
^^the first popular meeting ever held in New 
Netherland, the first recognition of the right of 
the people to a voice in the affairs of the colony. ' ' i 

1 Prentice, p. 67. 

(214) 



UNDER DUTCH CONTROL 215 

These elected a council of 12 select men to con- 
sider the condition of affairs. 

In 1642 this council met again, and asked that 
4 persons be chosen from their number to have 
access to the council, so that taxes might not be 
imposed on the colony in the absence of the 12. 
Gov. Kieft dismissed them and forbade them to 
meet again, thus for the time putting an end 
to popular government. 

The eight men, 1643. — But in 1643 the Indian 
outbreak became serious, and Gov. Kieft asked 
the people to appoint 8 men as a council. This 
body appealed to Holland, complaining against 
the governor, and in 1644 begged for his recall, 
which occurred in 1647. 

The nine men, 1647. — Gov. Stuyvesant, who 
followed him, found the people clamoring for 
self-government of Holland, and finally allowed 
an election by the people of 18 men, from whonl 
the governor and his council choose 9 men " to 
advise and assist the governor ivlien called up- 
on. " In 1699 these nine men petitioned Holland 
to establish " a suitable burgher government re- 
sembling that of the Fatherland", and further 
urged that the country should be freed from the 
control of the West India company. 

Thereupon Holland ordered that the adminis- 
tration and collection of taxes should be regu- 
lated by the people, that a burgher government 



2 1 HISTORY OF LEGISLATION IN NEW YORK 

should be established in Manhattan, and that 
the nine men should be continued 3 years and 
have jurisdiction in cases "between man and 
man". 

In 1653 Gov. Stuyvesant yielded to the order 
that a burgher government should be established, 
but he himself named the officers, defined their 
duties, and assured them they did not in any 
way hmit his powers. A general convention 
met Dec. 10, in which 8 villages were repre- 
sented. It prepared an address complaining of 
the arbitrary acts of the governor. Grov. Stuyve- 
sant ordered the delegates to disperse on pain of 
his highest displeasure, and the people again 
appealed to Holland. 

Ill 1658 the two burgomasters (governing 
magistrates) and five schepens (aldermen) were 
appointed from men selected by the people, and 
in 16G0 the schout (prosecuting attorney, judge, 
and sheriff) was elected by the people. In 1663, 
when English and Indian hostilities were threat- 
ened. Gov. Stuyvesant even sought advice from 
these municipal authorities, and on their advice 
summoned 

The laiult-tag, 1664, which was an assembly 
with representatives from 9 villages, while the 
governor met with them. 

Enghsh control succeeded the Dutch on Aug. 
26, 1661:, but Gov, NicoUs continued the courts 



UNDER ENGLISH CONTROL 2lT 

the Dutch had established, and inferior officers 
were allowed to retain their places until the cus- 
tomary elections. 

In February, 1665, the new municipal govern- 
ment was appointed by the retiring members, 
while the governor named the mayor. 

The Duke'S laws, compiled from those in use 
in other English colonies, were announced in 
1665, establishing four principles that are still a 
part of the fundamental law of the state: (1) 
equal taxation (174), (2) trial by jury (113), (3) 
obligatory military duty (269), (i) freedom of re- 
ligious worship (114). 

The first general assembly, 1683, was called by 
Gov. Dongan, to consult with the governor and 
council ^ ' what laws are fit and necessary to be 
made and established for the good of the people 
of the colony". It consisted of 17 members 
elected by the people, and enacted 14 laws. Of 
these 13 were approved by the governor and 
council, hilt the most important one was held 
back — a charter of liberties and privileges. 
This granted to every freeholder the right to vote 
''without let or hindrance ", and declared that 
no tax should be levied except by act of the 
governor, his council, and ' ' the people met in 
general assembly", a recognition of representa- 
tive government. When in 1685 the Duke of 
York became James II he obiected to this last 



2 I S HISTORY OF LEGISLATION IN NEW YORK 

expression, and refused to confirm the charter ; 
and in 1()ST the assembly was dissolved. 

Under William and Mary, Gov. Sloughter 
called the first royal assembly, 1691, convened 
by order of the crown. This, like the assembly 
of 1683, consisted of IT members and passed 14 
laws. It reaffirmed the charter of liberties. 

With succeeding governors the assembly had- 
occasional friction, usually gaining from every 
contest some additional power. When in 1760 
the chief- justice died. Gov. Golden recommended 
to the crown the appointment of a man from 
Massachusetts. This the people resented as an 
attempt to make the judiciary independent of 
the assembly, and the assembly refused to vote 
a salary for him. In the issues which led to the 
revolutionary war. New York was foremost ; and 
in June, 1767, the assembly was forbidden to 
exercise any further legislative functions until' it 
conformed to the requirements of the king by 
making provision for British troops. The assem- 
bly continued its sessions until permanently dis- 
solved by the governor, Feb. 2, 1768. 

The new assembly elected that month proved 
no more tractable, but after the meeting of the 
first continental congress it failed by a vote of 
11 to 12 to indorse the action of that body, and 
refused to elect delegates to the second. On 
May 1 it was prorogued by the governor, and it 



TINDER ENGLISH CONTROL 219 

never met again. In December, 1775, Gov. 
Tryon removed part of the records to an armed 
ship lying in the harbor, where they remained 
till returned to the city of New York in 1781. 

In June, 1776, the other records were removed 
to Kingston. 

The committee of sixty, 1775, was chosen by 
the patriotic element of New York to carry into 
effect the suggestions of the continental con- 
gress ; and this issued a call for a provincial con- 
vention, to choose delegates to the second con- 
tinental congress. After the battle of Lexington 
it issued a call for an election by freeholders of a 
new committee of one hundred ''for the present 
unhappy exigency of affairs ", which took charge 
of municipal affairs, and also of the election 
of delegates to 

The New York provincial congress, 1775. This 
met on May 22, and provided for the govern- 
ment until the state should adopt a constitution. 
The date of the battle of Lexington, April 19, 
1775, was fixed upon as the day on which the 
rule of England ceased. 



CHAPTER XX 

THE LEGISLATURE CONSIDERED AS A WHOLE 

The state constitution was adopted April 20, 
17 77, and the election was held in June. 

Bryce says (i.511, 428) the state legislature 
is so much the strongest force in the several 
states that we may almost call it the govern- 
ment, and ignore all other authorities. It does 
not, like congress, get its power from the con- 
stitution, but as representing the people has all 
powers not regulated and hmited by the con- 
stitution. 

The first legislature met in Kingston in Octo- 
ber, but on approach of the British adjourned 
and met in January, 1778, at Poughkeepsie. It 
afterwards met in each of these places, in Al- 
bany, and in New York. Albany became the 
permanent capitol in 1797. 

The New York legislature is indirectly mod- 
elled upon parliament 1, but with many marked 
differences, among which the following may be 
named. 



iBi.180, 4o9. 

(220) 



LEaiSLATURE AND PARLIAMENT 



221 



Ifew York legislature 

Limited by national 
and state constitutions. 

Governor has power 
of veto. 

All bills may origin- 
ate in either house. 

Senate elected bien- 
nially. 

Assembly, 150 mem- 
bers, elected for one 
year. 

No property qualifi- 
cations for electors of 
legislators. 

Salary $1,500. 



Parliament 

Supreme. 

Veto power no long- 
er exercised. 

Appropriation bills 
can originate only in 
house of commons. 

House of lords here- 
ditary. 

Commons, 658 mem- 
bers, elected for 7 years, 
but may be dissolved 
at any time. 

Only those can vote 
for members who oc- 
cupy dwelling renting 
for .^50 a year. 
No salary. 

Annual sessions are held, beginning on the first 
Wednesday in January. 

The original constitutions of ten of the states 
fixed upon 1 year. South Carolina upon 2 years, 
and Ehode Island and Connecticut upon 6 
months. ''So essential to republicanism was 
this principle deemed that the maxim ' where 
annual elections end tyranny begins ' had 
passed into a proverb. ' ' ^ Now however all the 

iBi.193. 



ooo THE LEGISLATURE 

states belonging to the original 13, except Massa- 
chusetts, Rhode Island, New York, New Jersey, 
and South Carolina, have biennial sessions, ^ 
while many of the states have limited the num- 
ber of days a legislature may sit, the last restric- 
tion often resulting in haste and recklessness in 
rushing bills through without due discussion. ^ 

The (lualifications prescribed for members are 
only negative. 

No person is ehgible to the legislature, vt^ho at 
the time of his election, is, or within 100 days 
previous thereto has been (1) a member of con- 
gress, (2) a civil or mihtary officer under the 
United States, or (3) an officer under any city 
government. 

If any person after his election to the legisla- 
ture is elected to congress, or appointed to any 
office, civil or military, under the government 
of the United States, or under any city govern- 
ment, his acceptance thereof vacates his seat 
(US), 

Of course he must be 21 years of age, and a 
citizen. 

An oath of office is required (280, 82), with a 
further oath (281) that the member has been con- 
cerned in no bribery (see page 160). 

This oath is usually administered by the secre- 
tary of state, but may be taken previously be- 

1 B i.533. 467. 2 ^ i.534. 



PROVISIONS COMMON TO BOTH HOUSES 223 

fore any justice of the supreme court, judge of 
a county court, mayor or recorder of any city, 
clerk of any county or court of record, or the 
attorney general or lieutenant governor. 

TJie salary is 11,500, with $1.00 for every ten 
miles travelled in going to and returning from 
the place of meeting, once each session, on the 
most usual route. 

Senators convened in extraordinary session get 
110 a day additional. 

In impeachment trials the senators, and the 
members of assembly not to exceed 9 who are 
appointed managers of the impeachment, re- 
ceive 110 a day additional. See page 230. 

Members are exempt from arrest in civil suit 
while attending sessions and for 14 days before 
and after each session. ^ Each house has power 
to expel its members upon report of committee. 

The legislature consists of the senate and the 
assembly. 

Bryce says (i.461): '' The need for two cham- 
bers is deemed an axiom of political science, be- 
ing based on the belief that the innate tendency 
of an assembly to become hasty, tyrannical and 
corrupt, needs to be checked by the co-existence 
of another house of equal authority. The 
Americans restrain their legislatures by dividing 
them, just as the Eomans restrained their execu- 

1 682:18927 



5l>4 ' THE LEGISLATURE 

tive by substituting two consuls for one king. 
The only states that ever tried to do with a single 
house were Pennsylvania, Georgia, and Ver- 
mont, all of whom gave it up : the first after 4 
yeare experience, the second after 12 years, the 
last after 50 years." 

On the other hand the bicameral system is 
often criticised. ^' When the object was the 
creation of pubhc sentiment, two houses secured 
twice as much pubhcity as one ; but when the 
object is despatch of pubhc business, two houses 
result in divided responsibility, with all the con- 
sequent delays and chicane. "^ 

The two houses have coordinate power in legis- 
lation ;2 and when vacancies occur elect by joint 
ballot United States senators (see page 455), 
regents of the University (see page 318), and the 
superintendent of public instruction (see page 
309). Most legislatures follow the EngHsh prece- 
dent of restricting the initiative in appropriation 
bills to the lower house as more directly repre- 
senting the people (see page 451); but there is 
reason for this in New York, since both houses 
are equally representative (see page 229). 

The legislature has all powers not restricted by 
the state constitution (see page 136), or delegated 
to the national constitution (see page 342). Be - 

1 Iladley, p. 78. 2 j^ i 433 



RESTRICTIONS UPON LEGISLATIVE POWER 225 

sides the restrictions in the bill of rights (112- 
129), there are restrictions against private or local 
bills deahng with matters that should be treated 
only under general legislation (158-170). The 
tendency to guard against granting privileges 
to certain corporations is shown by the amend- 
ment of 1901. Although the legislature had al- 
ready been forbidden to grant a corporation any 
exclusive privilege, annuity, or franchise what- 
ever (169), this amendment specifically forbids it 
to grant exemption from taxation on real or 
personal property (169 a). 



CHAPTEE XXI 

THE TWO HOUSES CONSIDERED SEPARATELY 

The lower or popular house of the legislature 
is called in New York the assembly. ^ 

It consists of 150 members (14:2), elected an- 
nually by assembly districts, the state being 
divided as nearly as possible according to popu- 
lation by the last census, except that every 
county has one member save Hamilton, which 
is united in an assembly district with Fulton. 
Every other district must be whoUy within the 
limits of a county, and every district must be 
whoUy within a senate district (14:4; see page 
229). See map, page 581. 

This division of the state gives much more 
equitable representation than that by towns, 
which still prevails to some extent in New Eng- 
land (see page 61). ^ 

The organization of the assembly occurs on the 
day of the opening of the legislature. The clerk 
of the last assembly, furnished by the secretary 
of state with an official list of the members elect, 
calls the assembly to order, and the first business 
is the election of a speaker (see page 121). 

The speaker has the appointment of a multi- 

1 B i.460. 2Bi5G3. 

(227) 



THE STATE ASSEMBLY 229 

tude of officers 1, such as his own clerk, stenog- 
rapher, and messenger, a postmaster, 10 general 
messengers, 2 committee messengers, 35 clerks 
of committees, 12 stenographers, etc. 

The other officers chosen by the assembly with 
their salaries are a clerk ($3,500 with $750 for 
indexing and not to exceed $750 for extra ser- 
vices and engrossing); a stenographer ($1,500); 
the sergeant-at-arms ($6.00 a day) ; and his assist- 
ants, a principal and 2 assistant doorkeepers 
($5.00 per day). 

The upper or restricted house of the legislature 
is called the senate, but unlike the upper houses 
of most legislatures (see page 453) is elected in 
practically the same manner as the assembly, the 
only difference being that there are 50 members 
instead of 150, and that to prevent large cities 
from having too preponderating an influence in 
the senate, it is provided that no county shall 
have more than J and no two adjoining counties 
more than J of aU the senators (140); and if 
any county having 3 or more senators at the 
time of any apportionment shall be entitled on 
such ratio to an additional senator or senators, 
such additional senator or senators shaU be given 
to such county in addition to the 50 senators, 
and the whole number of senators shall be 
increased to that extent (14:1). 

1467:1901, 



230 THE TWO HOUSES OF THE LEGISLATURE 

The senate districts are shown in the map on 
page 581. The state will be redivided into sen- 
ate districts in 1906, according to the census of 
1005. The term is 2 years, and election occurs 
in the even years. 

The organization of the senate is similar to that 
of the assembly, except that since the lieutenant- 
governor is ex- officio the presiding officer, no 
speaker is elected. Instead a president pro tem- 
pore is elected, to preside when the lieutenant- 
governor is not present (see page 199). 

The senate elects the same officers as the 
assembly, except the speaker, at the same sal- 
aries (see page 229), with the addition of a finan- 
cial clerk (^1,500), who in the assembly is ap- 
pointed by the clerk. 

The executive power of the senate Hes in its 
duty to confirm or reject appointments by the 
governor to such offices as those named on pages 
?02 to 209. 

Its judicial power lies in impeachment (from 
Latin pes, foot, hence to fetter), which is an 
indictment brought against public officers by the 
assembly (218), acting in this case as a grand 
jury (see page 81). 

The court consists of the senators or a majority 
of them, and the judges of the court of appeals, 
or a majority of them, and the heutenant gov- 
ernor unless the charges are brought against the 



IMPEACHMENT 231 

governor or lieutenant governor (218) when as 
an interested person he is disquahfied. A special 
oath is required to try the impeachment accord- 
ing to the evidence, a f vote of all members 
present is required for conviction, and judgment 
does not extend beyond removing the guilty per- 
son from office, and disquahfication to hold office 
of honor, trust, or profit under the state; but 
such person is liable to indictment and punish- 
ment according to law (218). 

The usual proceeding in the assembly is to 
appoint a committee to inquire into the alleged 
unlawful conduct of the officer complained of. 
If the committee reports in favor of impeach- 
ment and the assembly adopts the report, articles 
of impeachment are prepared and laid before 
the senate by a committee appointed. 

For corresponding power of the national sen- 
ate see page 458. In England the proceedings 
are similar, the house of commons finding the 
impeachme^nt and the house of lords trying it. 



CHAPTER XXII 

LAW-MAKING POWERS 

While the senate has some important execu- 
tive and one judicial power (see page 230), the 
main business of the legislature is^ as the name 
indicates (see page 28) to make laws (136). 
That in this it represents the people is kept in 
mind by the required enacting clause of every 
bin, ' ' The people of the state of New York, 
represented in senate and assembly, do enact as 
foUows" (154). 

Hence the power is absolute (171) except so 
far as it is limited by restrictions set by the con- 
stitutions (see page 132) of the state and of the 
United States, and by the laws of congress. The 
latter two will be considered later (see page 286). 
Cooley says : ' ' Plenary power in the legislature 
is the rule. A prohibition to exercise a particu- 
lar power is an exception. " ^ 

On questions upon which they do not Hke to 
commit themselves, like the regulation of the 
liquor traffic, legislators, are often glad to reheve 
themselves of responsibihty by referring the 
matter to popular vote, through a proposed 
amendment to the constitution. ^ 

iBi.324. 2Bi.451 

(232) 



THE REFERENDUM 233 

In South Dakota a law for referendum (from 
Latin re and ferre, to carry back) was recently- 
passed, under which 5 per cent of the voters may 
by petition presented within 90 days after ad- 
journment of the legislature require any law to 
be submitted to the people. In practice it has 
thus far been found impossible to secure the sig- 
natures of 5 per cent of the voters to such a 
petition, showing that the people are fairly satis- 
fied with the action of their representatives. 
Even on constitutional amendments (see page 
134) the vote is usually hght. At the general 
election of 1901 while 332,968 votes were cast in 
New York county for district attorney, only 
174,929 were cast for or against the amendment 
offered (169 a), 155,575 being left blank. 

Legislators a;^e however always glad to receive 
letters from their constituents expressing their 
views upon questions before them, and much 
good legislation has been secured and bad legisla- 
tion prevented by systematic letter-writing to 
members on the part of those interested. ^ There 
are few questions upon which a legislator will 
not vote as his constituents desire, if only he 
can be sure what they desire. 

The^^restrictions imposed by the constitution 
of New York are as follows as to scope : 

1 B i.5^3. 



234 LAW-MAKING POWERS 

The legislature is powerless to 

pay claims except as legally audited (172); 

makc^ payments except by appropriation and 
within 2 years (174); 

include in an appropriation bill any provision 
not relating to some particular appropriation in 
the bill (175); 

pass a tax bill which does not state the object 
to which it is to be applied (177); 

pass any private or local bill embracing more 
than one subject (156); 

grant any extra compensation to any public 
officer (181); 

give work to convicts the products of which 
shall be sold except to the state or some pohtical 
division of it (182). 

On the following subjects the legislature may 
pass general laws affecting the whole state alike 
(171), but may not pass special laws: 

changing names of persons (158); 

opening or closing roads (159); 

changing county-seats (160) ; 

changing place of trial (161); 

incorporating villages (162) ; 

election of supervisors (163) ; 

choosing jurors (164) ; 

rate of interest (165); 

conduct of elections (166); 

changing salaries during term of office (167); 



LIMITATIONS AS TO SCOPE 235 

railroad franchises (168^ I'^'l); 

any exclusive privileges (169) ; 

building bridges, except as specified (170); 

These restrictions are sometimes evaded. Thus 
the constitution forbids that an act shall be 
passed affecting the elections of any single 
county; but by passing a law applying to all 
counties in the state having a population of more 
than 300,000 and less than 500,000, the legisla- 
ture makes a law general in form that applies 
only to Erie county. ^ 

Bryce refers frequently (i.482, 508, 550) to the 
tendency of legislatures to go so far into details 
in their laws as to obhterate executive discre- 
tion, specifying the purposes to which money 
is to be applied, and supervising the expenditure 
by its own committees. The most questionable 
use of legislative power is the extent to which 
it interferes in the government of cities. ^ The 
population of New York city is nearly one-half 
that of the state of New York ; but the state has 
power to extinguish the municipality, to govern 
the city by a single state commissioner appointed 
for the purpose, or to leave it without any gov- 
ernment whatever. The city would have no 
right of complaint to the national president or 
congress against such a measure. ' ' Massachu- 

^ Bryce i.529 (see table of population, inside first cover.) 
2Bi.516. 



<2'M\ LAW-MAKING POWERS 

setts has lately remodelled the city government 
of Boston just as the British parliament might 
remodel that of Birmingham. " ^ 

In Pennsylvania a law of 1901 sustained by 
the supreme court permits the governor to ap- 
point recorders in the place of the mayors of 
Pittsburg, Allegheny, and Scranton. Another 
law of 1901 provided for the incorporation of 
railways either elevated or underground with 
surface rights in all the streets of the cities not 
already occupied by railways. In Philadelphia 
14 franchises covering 120 miles of streets were 
at once called for, and though one citizen offered 
2 J millions for the franchises, the mayor gave 
them away for nothing, and with indecent haste. 

These requirements are made as to manner : 

To ensure deliberation, every bill must be 
printed in its final form and put on the desks of 
the members at least 3 days prior to its final 
passage (155). 

To ensure intelligent voting, every bill chang- 
ing an existing law, must have the law as it ex- 
ists inserted (157) for comparison. 

To ensure a representative majority, every 
bill appropriating money or property must have 
(a) if for local or private purposes the assent of 
J of all the members elected to each house (173); 
and {b) if for (1) laying a tax, (2) creating a pub. 

1 -"^ i.407. 



LIMITATIONS AS TO MANNER 23? 

lie debt, (3) appropriating public money, or (4) 
releasing any claim of the state, a majority vote 
taken by yeas and nays, | of all the members 
elected to constitute a quorum. 

A quorum (a Latin word meaning '' if whom ") 
is the number of persons required in a legislative 
body to do business. 

In England the number required for a quorum 
in the house of lords is 3 ; in the house of com- 
mons 40. 1 

Usually a majority of these elected constitutes 
a quorum (150), and a majority of these may 
pass a bill. Thus of the 150 members of assem- 
bly 76 constitute a quorum, and 39 may pass a 
bill. Note however : 

upon appropriation bills | of all members elected 
must give assent (173); 

upon the final passage of bills imposing a tax, 
creating a debt, or making an appropriation of 
public trust money f of all members elected must 
be present (178); 

to repass a. vetoed bill the votes of f of all 
members elected are required (191). 

For comparison of the requirements in con- 
gress see page 430. 

iBi.196. 



CHAPTER XXIII 

HOW LAWS ARE MADE 

The process of making a law begins by the in- 
troduction of a bill, which is in the form of a 
law or statute, and if passed and approved with- 
out amendment becomes a statute. 

A bill may be introduced (a) by order of the 
house ; (6) by message from the other house ; (c) 
by report of committee ; or {d) by a member in- 
dividually, in the senate by rising in his place 
and asking leave to present it ; in the assembly 
by depositing it in the '' bill-box ". 

By the last method, two copies of the biU 
must be deposited, endorsed by its title, and 
giving the name of the member introducing 
it. The clerk has charge of the box, and at the 
close of each day's session records each bill and 
hands one copy to the presiding officer for ex- 
amination, while the other copy is filed with the 
librarian for public inspection. 

At the next regular session the presiding officer 
announces the introduction of all such bills for 
their first reading (by title), and refers them by 
consent of the house to their appropriate com- 
mittees (see page 245). 

(238) 



THE THREE READINGS 239 

The committee maj report against the bill, in 
which case if the house concurs the bill is re- 
jected. But if it reports it, with or without 
amendments, it is placed on the order of second 
reading. 

Here the bill is subject to debate and amend- 
ment, and must be read section by section. If 
amended it must be reprinted, and reported by 
the committee on printed and engrossed bills as 
correctly printed, before going to the tliird read- 
ing (155). Here no amendments are permitted 
except to fill blanks or by unanimous consent, 
or reported by a committee to which it has been 
referred. 

The three readings are compulsory, and must 
be on different days. A bill reported by a com- 
mittee to which such bill has not been referred 
must pass through first and second readings as 
though introduced by a member. 

Sometimes the rules as to readings are sus- 
pended, and a bill is introduced and passed im- 
mediately, without reading or reference to a 
committee. 

When bills have been favorably reported by 
the committee and are on their final passage, a 
minority will sometimes delay their passage by 
what is called obstructive debate, a series of 
speeches made without hope of influencing the 
majority but to consume time. This is some- 



1>40 HOW LAWS ARE MADE 

times called filibustering (corrupted from English 
freebooter). ^ The remedy is what is called '' the 
provious question ", which is moved in the form, 
''Shall the main question now be put?" and 
when ordered closes the debate and brings the 
house to a vote on the main question. ^ 

Both houses sometimes go into commitee of the 
whole, the speaker selecting some other chair- 
man and himself taking a seat upon the floor. 
It can not conclude any business and it can not 
adjourn ; but when it has completed the discus- 
sion desired, some member moves that the com- 
mittee do now rise, the presiding officer re- 
sumes the chair, and the chairman reports the 
business transacted in the committee. If the 
committee desires to adjourn, it first rises and 
reports progress to the speaker. The object of 
this committee is to give greater freedom in 
debate; the ayes and noes can not be demanded; 
in the senate committee there is no limit to the 
number of times a member may speak, and in 
the house committee the previous question does 
not apply. 

Sometimes a bill before the house involves 
party interests to such an extent that it is im- 
portant to command every vote. In such case a 
caucus (see page 176) of the members of the 
party in the house is called, by the results of 

^Bi.l31. 2Bi.i31. 



THE VETO 241 

which every member of the party is supposed to 
abide. ^ 

If the bill is passed by receiving the required 
vote, it is dehvered by the clerk to the other 
house, where it goes through the same process. 
If amended in this other house it must be re- 
turned to the first house for concurreDce, with- 
out which concurrence the bill is defeated. 

If passed in the same form by both houses, it 
is dehvered by the clerk of the house in which 
it originated to the governor. 

If signed by the governor (191), it is sent by 
him to the secretary of state, and is numbered 
in turn as a chapter of the laws of the year in 
which it is passed. After the adjournment of 
the legislature aU bills in the governor's hands 
to become laws must be signed within 30 days. 

The frequent references to laws in this volume 
are by chapter and year ; thus, 18:1901 is chap- 
ter 18 of the laws of 1901. 

If left unsigned by the governor, (a) if retained 
by him 10 days (Sundays excepted) during the 
session of the legislature, it becomes a law with- 
out his signature (191); {b) if the legislature by' 
adjournment within the 10 days prevents ita 
return, the bill does not become a law (191); (c) 
after the final adjournment of the legislature, 
it does not become a law (191). 

i~Bi.20l. 



2-1.^ HOW LAWS ARE MADE 

If vetoed (see page 103) by the governor, it is 
returned by him with his objections to the house 
in which it originated. The house must enter 
the objections upon its journal and proceed to 
reconsider the bill. If it is then passed again by 
I of the members elected, it is sent with the 
governor's objections to the other house, and if 
approved by f of the members elected to that 
house becomes a law (191) ; otherwise not. 

In appropriation bills, the governor may ap- 
prove part of the items, and object to one or 
more of the others, in which case the disap- 
proved are again considered by the two houses 
as in case of return of entire biUs (191). 

This privilege was first given to New York 
governors by the constitution of 1846, and is 
unquestionably a wise one. Without it a corrupt 
legislature could force him to approve appropria- 
tions that he knew to be steals on penalty of 
stopping all the machinery of government for 
want of money to carry it on. It has been 
adopted in other states. 

The veto is a legislative power, and makes the 
governor in some sense a third house of the 
legislature. It was formerly possessed by the 
kings of England, but it has not been exercised 
since 180T, and as the constitution is now inter- 
preted has passed away. The king has no such 
veto. He must sign his own death-warrant if 



THE VETO 243 

the two houses unanimously send it up to him, 
or abdicate. ^ 

' ' Considering that the arbitrary use, by George 
III and his colonial governors, of the power of 
refusing bills passed by a colonial legislature had 
been a chief cause of the revolution of 1TT6, it 
is to the credit of the Americans that they in- 
serted this apparently undemocratic provision 
(which, however, existed in the constitution of 
Massachusetts of 1780) in the constitution of 
1789. It has worked wonderfully well. " * * * 
'' It is an interesting commentary on the tenden- 
cies of democratic government, that in America 
reliance is coming to be placed more and more, 
in the nation, in the state, and in the city, upon 
the veto of the executive as a protection to the 
community against the legislative branch. "^ 

The checlis against majorities provided by the 
constitution are many, and have proved efficient. 
Thus a bill fails 

(1) if passed only by one house; 

(2) if passed by both houses and vetoed by the 
governor, unless repassed ; 

(3) if decided by the court of appeals to be un- 
constitutional. 

Sometimes an executive has refused to execute 
a law passed over his veto, so that it becomes 
inoperative until another governor is elected. 

1 Bagehot, The English constitution. ^B\M, 283, 469, 



244 HOW LAWS ARE MADE 

In the national constitutional convention it is 
probable an absolute veto would have been given 
to the president had not Benjamin Franklin pro- 
tested, saying it had been tried in Pennsylvania, 
where no good law could be passed without a 
private bargain with the governor. 

Of the presidents, Washington vetoed 2 bills; 
Madison 1, Monroe 1; John Adams, Jefferson, 
J. Q. Adams, none; Grant 41, Cleveland 343. 
The first bill passed over a veto was in Tyler's 
administration. 



CHAPTER XXIV 

LEGISLATIVE COMMITTEES 

We have seen that when first introduced a 
bill is referred to a committee, and that the 
house does not take action upon it till reported 
by the committee ; of most bills the fate is prac- 
tically decided in committee, ^ which can amend 
the bill, or delay reporting it till too late for 
action, or report it adversely. ^ 

The house may direct the committee to report 
forthwith, and may restore an amended bill to 
its original form ; but in practice the decision of 
the committee is rarely overruled. -^ 

• Hence the most important work of each mem- 
ber is done not in the general sessions but in the 
committee, and the house ' ^ has become not so 
much a legislative assembly as a huge panel 
from which such committees are selected. " ^ As 
the committees are named by the presiding 
officer, it is in his power by his choice of mem- 
bers largely to shape the legislation of the house, 
as well as to reward his friends and punish 
those who have opposed him. ■' 

1 B i.l50, 648 ; ii.252. 2 3 i 153 3 3 i 143^ 154^ I57 
4Bi.l55. 5 13 1136 

(245) 



24:6 LEGISLATIVE COMMITTEES 

As the presiding officer of each house is, un~ 
hke the speaker of parliament (see page 451), a 
pohtical partisan, he gives the most important 
places on the committees to members of his own 
party. Every member is, however, placed upon 
some committee, and most of them are placed 
upon several. 

Besides special committees, appointed to deal 
with questions that arise outside the regular 
work of standing committees, both houses- have 
the following standing committees : 

12. villages, 

13. internal affairs, 

14. Indian affairs, 

15. military affairs, 

16. pubhc health, 

17. taxation and re- 
trenchment, 

18. public education, 

19. privileges and elec- 
tions, 

20. rules, 

21. public printing, 

22. printed and en- 

grossed bills. 
These committees deal practically with the 
same subjects though under different titles : 



1. 


judiciary. 


2. 


codes. 


3. 


revision. 


4. 


railroads. 


5. 


canals. 


6. 


commerce and nav- 




igation. 


7. 


insurance, 


8. 


banks. 


9. 


agriculture, 


10. 


trades and manu- 




factures, 


11. 


cities. 



WORK BY COMMITTEES 



247 



senate 

23. finance, 24. ways and means, 

25. forest, fish, and 26. fisheries and game, 

game laws, 
27. penal institutions, 28. state prisons. 

The following committees are found only in 
one house: 

senate 

29. miscellaneous cor- 30. roads and bridges, 
porations ; 

assembly 



37. general laws; 

38. labor and indus- 
tries ; 

public lands and 
forestry ; 
claims ; 
federal relations. 



39. 



40 
41 



31. electricity, gas, 
and water; 

32. excise; 
3 3 . pubh c i nstitutions ; 

34. soldiers home ; 

35. charitable and re- 
ligious societies; 

36. unfinished busi- 
ness ; 

The senate committees have from 3 to 11 
members each; the house committees, 5 to 11 
members. 

The most important committee in the assem- 
bly is that of ways and means, and its chairman 
is the leader of his party in the house. ^ 

Some bills deal with a subject embraced under 
the jurisdiction of two or more committees, and 

iBi.146, 173. 



248 LEGISLATIVE COMMITTEES 

its fate may depend upon which of these com- 
mittees it is referred to. ^ 

From the fact that the work of the legislature 
is so largely done in committees, there is com- 
paratively little scope for oratory. ^ The new 
memher who has had some reputation in his 
local lyceum, and expects to sway the assembly 
by his eloquence, soon finds that the legislature 
is not conducted on the plan of school exhibitions. 
Macaulay says: ''Armies have won victories un- 
der bad generals, but no army ever won a vic- 
tory under a debating society." Parhament 
was made large in order to influence pubhc 
opinion. ' ' The abandonment of the duty of 
debate as to the common interest, and the sub- 
stitution of the work of negotiation as to the 
private and partisan interests of the several dis- 
tricts, have tended to convert the representative 
assembly from an object of public confidence to 
one of public distrust. ' ' ^ 

The committee system is probably ineyitable, * 
but it has many dangers. In the first place the 
responsibility is divided. Since the action upon 
a bill is by a committee of several members, no 
one of them can be held personally accountable, 
— he may claim to have been outvoted. On the 
other hand, as there are few members on a com- 
mittee each vote is powerful, and a corporation 

iBi.153. 2Bi.i41; ii. 268. » Hadley. p. 96. ^Bi.lSO. 



DANGERS 249 

whose interests are affected can afford to pay an 
enormous price for the vote of a member subject 
to temptation. ^ 

A member's action may be deflected by other 
influences than a money bribe, and it is important 
for great corporations, always on guard lest their 
interests be injured by legislative action, to 
keep at Albany agents skilled in dealing with 
members of the legislature, known as lobbyists 
(so called from the lobby, the space just outside 
the hall, where members meet their friends). ^ 

These agents are often ex-members, of wide 
acquaintance and long experience, and are fre- 
quently paid much higher salaries than members 
receive. They are so numerous that they are 
often spoken of as the third chamber. 

Georgia has pronounced lobbying a crime, and 
California has declared it to be a felony. ^ It is 
claimed that corpora tior^s have the right to em- 
ploy a lobbyist as a party in a law- suit employs 
an attorney; but Bryce urges (i. 650) that in a 
law-suit the judge is surrounded by safe-guards 
of habit and opinion that would cut short his 
career were he to yield to such influences as often 
have weight with the members of a committee. 

How strong some of these influences are re- 
garded is shown by the provisions in the con- 



1 B i,516, 648 ; ii.l52, 156. ^g i.i56, ^ 3 j 445^ 



250 LEGISLATIVE COMMITTEES 

stitution against bribery (282) and even against 
accepting passes on railroads (285). ^ 

Action on a committee may also be unduly 
influenced by other members of the committee. 
Two members, each of whom has a bill to get 
through, or one of whom desires to prevent his 
railroad from being interfered with while the 
other wishes an item inserted in the appropri- 
ation bill, make a compact by which each aids 
the other. This is log-rolling -J you help me 
roll my log, which is too heavy for my unaided 
strength, and I help you to roll yours. 

Sometimes a member brings in a bill directed 
against some railroad or other great corporation, 
merely in order to levy blackmail upon it. This 
is technically called a strike. ^ Bryce says 
(ii.l53): "An eminent railroad president told me 
that for some years a certain senator regularly 
practised this trick. When he had brought in 
his bill he came straight to New York, called at 
the railroad offices, and asked the president what 
he would give him to withdraw the bill. ' ' ^ 

Some lawyers who are elected to the legisla- 
ture receive from powerful corporations retainers 
as lawyers, without the expectation of any ser- 
vice outside the legislature. ^ 

iBii.154. 2 i-iadley, p. 79. ^ g j 5^3^ *Bii.l54. 
5 B ii.loo. 



THE LEGISLATURE TRULY REPRESENTATIVE ,251 

From such instances there has arisen a ten- 
dency to undervalue the work of the legislature, 
to suspect the integrity of the members, and to 
refer to membership as conferring no dignity. 
The fact remains, however, fhat it is, as it was 
intended to be, fairly representative of the 
people of New York. Election to the assembly 
is rightly regarded an honor, and election to the 
senate is a distinguished honor. The various 
districts are represented not only by the men the 
electdi"s have chosen but by men who have a 
right to speak for their electors. If an assem- 
blyman or a senator is corrupt and known to be 
corrupt and yet is re-elected, it is reasonably cer- 
tain that he comes from a corrupt district. 

But with all the criticisms that may be made 
upon the men New York has chosen to represent 
her, it is still true that the body of civil and 
criminal law they have enacted is to-day in the 
forefront of modern jurisprudence, an honor to 
the state and a panoply to its citizens. 



CHAPTER XXV 

COURTS OF LAW 

We have considered the executive and the 
legislative departments of the state government, 
and we come now to the third, the judiciary. 
The primary condition of government is that it 
has laws and that it enforces them. The laws 
may be elementary and insufficient; the^ may 
not all be enforced. But unless there is a recog- 
nized force that compels obedience to law there 
is no government ; there is auarcliy (from Greek 
a privative and arche, government, without gov- 
ernment), where every man does as he happens 
to please, and there is no compelling authority 
to preserve order and administer justice. 

Law in its general sense is a rule of action, as 
the law of gravitation. As a rule of conduct, 
it is in its relation to a person's conscience the 
moral law or the law of nature ; as based upon 
the teachings of the Bible it is known as revealed 
or divine law (see page 15). As used in civics it 
is an ofticially established rule for regulating 
social, action, prescribing some things and forbid- 
ding others. In a republic it is the controlling 
will of the people expressed as to a particular 
rule of conduct (see page 232). 

(252) 



WHAT LAW IS 253 

The common law is the accumulation of legal 
decisions through many generations, the decision 
of each judge becoming a precedent for other 
judges, and the repeated decisions of many 
judges becoming fixed law (see page 59). ^' This 
is not law," remarked a judge before whom 
Daniel Webster was pleading. '' It was law 
until your honor spoke, ' ' was the reply. 

The justice's court is ''the humblest court in 
the land, the court of greatest antiquity, and the 
court upon which all other courts are founded. ' ' ^ 

In the early English town meetings justice 
between man and man was administered directly, 
the old men stating the custom in such matters, 
and the entire community voting upon each case. 
Such cases formed the basis of the Common Law 
of England. Justices of the 'peace were ap- 
pointed in 1191, and received that name under 
Edward III (1327-1377), who empowered them 
to try felonies. See pages 29, 36. 

In provision for jury trial in the federal con- 
stitution (90) the term common law is used in 
contra distinction from equity, admiralty, and 
maritime jurisprudence, in all of which the 
courts determine both law and fact. The su- 
preme court had been vested (68) with appellate 
jurisdiction both as to law and fact. This 
amendment (90) was to correct the misapprehen- 

1 Thorpe. 



254^ COURTS OF LAW 

sioii that the supreme court was authorized to 
review the decision of the jury in mere matters 
of fact. New York authorizes the common law 
(1-7). 

Common law is based upon the accumulated 
common sense of generations, and usually ap- 
peals to the common sense of the present genera- 
tion. When it fails to do so it is disregarded, 
or is supplanted by statute law (see page 132). ^ 
The law is an instrument for the protection of 
the people, and when it begins to oppress the 
people it will be overturned (127). ''In a free 
country all decisions of the courts rest upon the 
general consent and conscience of the people 
themselves."^ 

' ' Bentham may be said to have overthrown a 
theory which was historically false and phopheti- 
cally true, and substituted one which was his- 
torically true and prophetically false. Things 
have been law, not because they were just or 
even logical, but because the courts enunciated 
them. But it is safe to prophesy that this state 
of things will continue only so long as the courts 
are respected by the public as being at once just 
and logical. It is right as well as convenient for 
the lawyer to assume that whatever the courts 
command will be law; but only because the 
courts show themselves clearer- sighted than the 

' B i.482. ^ B ii.445. 



THE FOUNDATION OF LAW 255 

body of the nation. The authority of the Eng- 
lish courts, while nominally derived from the 
crown, has been practically derived from their 
own good sense and progressiveness. " ^ 

On the other hand, the machinery of the law 
sometimes seems to the people insufficient, and 
then what is called lynch law deals with crimes 
that seem likely to go unpunished. Sometimes 
a volunteer jury is summoned, but often the 
supposed criminal is simply seized and executed. ^ 

Such peremptory punishment is common in 
the southern states, and not rare in some of the 
northern states, but it is often mistaken and 
always exceedingly dangerous. 

There was formerly a further distinction be- 
tween courts of common law and courts of 
equity (from Latin aequus, equal, just) or chan- 
cery (from Latin cancelli, the crossbars which 
surrounded the seat of judgment), the special 
province of which was to relieve persons from 
hard bargains, where the stricter rules of other 
courts would be inadequate. There are cases 
where the forms of the law have been followed 
and no direct fraud or deceit can be shown, and 
yet where a strict construction of the law would 
work injustice, such as in partnerships, in the 
administration of trusts, and where by mistake 

iHadley, p. 74; see also p. 30. ^ g 11,453, 



L>:)(; COURTS OF LAW 

or accident or the fault of another hardship 
would follow unjustly. 

But the latitude given the judges in these 
courts aroused suspicion that this laxity was 
sometimes abused, and the popular party of the 
17th century in England opposed them. ^ Chan- 
cery courts were aboHshed in New York in 1846 
(201, 206). 2 

Some states have established in place of chan- 
cery courts a tribunal of arbitration (from Latin 
arbiter, one who comes to look on) ; or a court 
of conciliation (from Latin con and calare, to call 
together), where commissioners of conciliation 
are elected like justices of the peace, and are 
associated with the justice in trying cases, no 
attorney being allowed to be present, the effort 
being to bring the parties to an agreement. 
Should the effort fail, the case is tried as usual, 
but the proceedings before the commissioners 
form no part of the evidence, and the commis- 
sioner can not testify. It is said that in Norway 
nine-tenths of the litigation in civil cases is 
settled in this way. 

Municipal or civil law relates to business and 
property relations. It includes commercial law, 
dealing especially with the regulation of trade 
and commerce. The issue is as to money due 
and the control of property. 

' B i.480. ■' B i.481. 



KINDS OF LAW 257 

Criminal law deals with violations of the law, 
the end being to punish the guilty person by- 
fine, by imprisonment, or by death. Prosecu- 
tion is brought "in the name of the people", 
showing that the law is to protect the people. 

A court martial (from Latin Mars, the god of 
war) is a military court composed of officers, to 
try offences against military law. The court for 
the trial of impeachments (218) has already been 
described (see page 230). 

The judicial department has two functions: 
(1) to interpret what the law is and whether it 
is constitutional (if not, it is not a law [see page 
132]); (2) to pronounce upon its application to 
particular cases, when disputes arise. Before 
the law can be executed, its application to the 
particular instance involved must often be de- 
termined and this is done by trial in courts of 
law. 1 For the former, see page 286. We shall 
consider the latter function first, because it was 
historically first. 

Originally legislative, executive, and judicial 
functions were all united in the s^me person, the 
sovereign, or in the same body, as in the town- 
m'eeting (see page 26). On some matters of Eng- 
hsh law the house of lords is still the court of 
last appeal. ' ' In most countries the courts have 
grown out of the legislature; or rather, the 

iBii.247. 



258 COURTS OF LAW 

sovereign body, which, like parliament, was 
originally both a law court and a legislature, has 
dehvered over most of its judicial duties to other 
persons, while retaining some few to be still 
exercised by itself. ' ' ^ 

The second charter of Massachusetts tended 
to separate legislative and judicial functions, 
as in appointing circuit judges to hold court 
in the counties. The idea of complete separa- 
tion was developed before the revolution. 

The Enghshmen who came to America as col- 
onists were used to these courts : 

1. Justices' court, or petty session. 

2. Justices' court in quarter sessions, which 
heard appeals from (1), and considered more 
important cases. 

3. Assize courts, held by justices sent out 
from the high courts of the kingdom, which 
tried the most important cases. 

4. High courts, to hear appeals, and cases 
involving matters of state. 

5. The king's council, especially the house of 
lords and the privy council. 

Under its first charter, the judicial business of 
the colony of Massachusetts was in the hands 
of the governor and council, of magistrates 
whom they appointed, and of local magistrates 
elected in the towns. The 18 members of the 

1 B i.235. 



ATTORNEYS AND COUNSELLORS 259 

governor's council held court for small cases in 
the towns where they lived. In other towns 
commissioners of small causes were chosen. 
The governor and assistants held courts once a 
month, and 4 great courts a year were held for 
important cases. In 1691 county courts were 
organized, and justices of the peace were ap- 
pointed in the different counties by the governor. 
. This was the general colonial type : 

1. Justice of the peace, petty sessions. 

2. Justices of the peace, quarter sessions. 

3. Courts of intermediate grade, held by judge 
of governor's council or high court. 

4. Supreme court. 

A man has a right to plead his own case in 
court, but in practice he does it through attor- 
neys. It is a common saying that a man who 
is his own lawyer has a fool for a client. 

An attorney (from Latin ad and tornare, to 
turn in a lathe) is in general one legally appointed 
by another to do business for him. An attorney 
at law is a practitioner in a court of law, legally 
qualified to prosecute and defend actions. 

A counsellor at law (from Latin consilium, coun- 
sel) is one legally quahfied to give legal advice 
and manage cases in court. In England the 
term for attorney is solicitor and that for coun- 
sellor is barrister, the solicitor carrying on the 
practical and formal part of the suit. In the 



260 COURTS OF LAW 

United States no distinction is made, and the 
general term la^^^rer is commonly employed. 

To be admitted to the New York bar, which is 
the term employed for certifying legal quah- 
fication as a lawyer, a person must be (1) 21 
years of age, (2) a citizen of the United States 
(women are admitted), (3) of good moral char- 
acter; (4) (a) with a certificate of having passed 
the regents examinations, or (b) a graduate of 
an academy, or (c) have had one year in a col- 
lege or university ; (5) must have served 3 years 
as a clerk in the office of a practising attorney 
of the supreme court ; and (6) must have passed 
a satisfactory examination before the state board 
of examiners. 

Of the clerkship 2 years may be spent in a law 
school, and college graduates may deduct 1 year. 

It is manifest that the success of a judicial 
system will depend upon the judges (from Latin 
judex, a judge) who preside in the courts. 

In 11 of the 13 colonies the judges were ap- 
pointed by the governor. Under the 13 original 
state constitutions 5 left the appointment to the 
governor with consent of the council, 1 to the 
governor and legislature in joint ballot, 6 to the 
legislature, and 1 to the people. Massachusetts 
judges are still appointed by the governor and 
council, for Hfe or during good behavior. ^ Con- 

1 B i.484, 603. 



JUDGES 



261 



necticut, which had vested the appointment in 
the legislature, and Mississippi, which had left it 
to the people, have given it to the governor with 
approval of the legislature or the senate. ^ In 
the 10 years ending 1886, Florida was the only 
state to take the appointments from the legisla- 
ture or governor and entrust it to popular vote. ^ 
Whether judges should be appointed or elected 
is a much debated question. The arguments 
may be briefly summarized as follows : 



For appointment 

The people being un- 
able to estimate the 
qualifications of candi- 
dates elect inferior 
men. 

An appointing officer, 
being held responsible, 
takes care to choose su- 
perior men. 

The judge looking 
forward to reelection, 
hesitates to render a 
decision likely to be un- 
popular. 3 

Abler men will accept 
the places, as the honor 

1 B i.489, 2 51,489. ^b 



For election 

If the people are not 
to be trusted in the se- 
lection of officers, then 
our whole republican 
system is on a false 
foundation. 

An appointing officer 
is likely to give prefer- 
ence to personal or 
pohtical friends. 

An appointed judge 
must remember in his 
decisions those to whom 
he owes his appoint- 
ment. 

To have pleased a 
single man is not so 
i.365. 



262 



COURTS OF LAW 



is greater and the risks 
of a political campaign 
are escaped. 



in- 



great an honor as to 
have pleased an entire 
community. 

A man is unworthy 
of' election as judge if 
his record is such that 
he fears to have it 
vestigated. 
In New York the decision of the people 
been in favor of an elective judiciary. ^ 

On the other hand the judges of national 
courts have always been appointed (see page 282). 
There is also the question as to term of office. 
If a judge is appointed for hfe, he is independ- 
ent of fear or favor. Only 4 states now give 
judges this tenure, the term of office varying 
from 2 years in Vermont to 21 years in Pennsyl- 
vania. 2 



Prentice, pp. 379, 405, 531. 



B i.484. 



CHAPTEE XXVI 

THE STATE COURTS 

We hare spoken of the judicial system of the 
town (see page 30) and of the county (see page 
76). The judicial system of the state consists 
of the supreme court and the court of appeals 
(201). 

The supreme couii; hardly deserves its name (a 
Latin word meaning highest), for there is a 
higher court, the court of appeals. In several 
states the name for this is the superior court, 
while the court of appeals is called the supreme 
court. It is often called the circuit court (209) 
because most of the districts include several 
counties, and the judges travel from one county 
to another. 

It has both original and appellate jurisdiction 
(see page 7T), in law and equity (see page ^^^), 
and in all actions civil and criminal not provided 
for in the lower courts. 

It consists of 76 justices, in 8 judicial districts 
(201), as shown on page 569. 

The qualifications are that the candidate be at 
the time an attorney or counsellor (see page 259) 
in a court of record (see page 268) of the state 
(226). A justice may not hold any other office 

(263) 



264 NE'.V YORK SUPREME COURT 

or public trust (215), or practise as attorney or 
act as referee (226). 

He may be removed on concurrent resolution 
of both houses of the legislature if | of the 
members of each house concur (216). He may 
not serve after the year in which he became TO 
years old (217). 

Justices are elected on the general ticket, for 
a term of 14 years (207). They may be removed 
only for cause and by concurrent action of the 
legislature (216). Vacancies are filled till Dec. 
31 next following the next general election by 
the governor, the senate to concur if in session 
(207). 

The salary is ^6, 000, with an annual allowance 
for expenses (226), but may be increased by the 
board of supervisors to not more than $14,000. ^ 

The procedure of a civil suit in the supreme 
court is as follows : 

The party bringing the action or suing (akin 
to Latin sequi, to follow) is called the plaintiff 
(from Latin plangere, to beat the breast, to 
lament), and the suit begins by the service upon 
the party against whom the action is brought, 
the defendant (from Latin defendere, to ward off), 
of a summons (see page 30), issued by some jus- 
tice upon affidavit of the plaintiff, summoning 
him to appear in court to make answer to com- 

1299:1901. 



PROCEDURE IN CIVIL SUITS 265 

plaint. Should the defendant fail to appear, 
judgment may be issued for the plaintiff; but if 
good reason for the defendant's non-appearance 
is subsequently given, the judgment may be re- 
opened on payment of costs. 

The defendant usually appears not in person 
but by attorney ; and the plaintiff files or serves 
his declaration or complaint (from Latin con and 
plangere, as above) setting forth the grounds 
upon which he claims judgment. To this with- 
in 30 days the defendant makes answer by fil- 
ing his plea (from Latin placere, to please) or 
demurrer (from Latin mora, delay), stating his 
side of the case. These papers are called plead- 
ings. If there is agreement as to facts no trial 
is necessary, and the justice decides the question 
as to the law. 

If the pleadings differ as to facts, these must 
be settled by a trial (from Latin terere, to thresh, 
a place where facts are threshed out of the evi- 
dence) to which witnesses are summoned by sub- 
poena (see page 30). 

A justice presides, and unless waived by agree- 
ment, a jury is impanelled (see page 83), after 
which the plaintiff's lawyer makes a brief state- 
ment of his case and calls his witnesses. When 
each has finished his testimony, the defendant's 
lawyer may cross-examine, or ask questions 
bringing out facts favorable to the defendant 'c 



266 NEW YORK SUPREME COU^IT 

side, or tending to show that the witness has 
testified falsely. 

When the plaintiff's lawyer has called all his 
witnesses, he ''rests"; after which the de- 
fendant's lawyer makes his statement of the 
case, and calls his witnesses, who may also be 
cross-examined. Afterward each lawyer may 
call witnesses for rebuttal. Then the lawyer for 
the defence sums up the case, reviewing the evi- 
dence, stating points of law, and endeavoring to 
make it appear that the law and the facts are 
on his side. The lawyer for the plaintiff then 
sums up, trying to impress the jury that the law 
and facts are on his side. Then the judge dehv- 
ers a charge to the jury, stating the law, and 
calling attention to the bearing upon the decision 
of the facts, which they alone are to determine. 

The jury retires ; and if it can agree (see page 
85) brings in its verdict (from Latin verum, true, 
and dictum, saying). After this, or decision by 
the court if there has been no jury, the success- 
ful party enters judgment, a decree by the court. 

If the plaintiff wins, this is for the amount given 
in the verdict; and if the verdict is over |50, also 
for costs, a fixed scale of charges to reimburse the 
successful party for the legal expenses of the suit. 
This limitation is to discourage litigation over 
small claims. 

If the verdict is for the defendant, then he 
enters judgment for costs. 



PROCEDURE IN CRIMINAL SUITS ^67 

Unless the judgment is paid within 30 days, 
an execution (from Latin ex and sequi, to follow) 
is issued against the property of the defeated 
person, and the sheriff may sell sufficient of it 
to cover the amount of judgment (see page 67). 
In case of appeal to a higher court, security 
naust be given by the defeated party. 

In criminal cases the procedure is much the 
same. The state is always the plaintiff, the dis- 
trict attorney conducts the case for the state; 
and instead of a summons there must be an 
indictment (see page 82) followed by arrest (from 
Latin re and stare, to stand), and usually by bail 
(see page 1J:1). The prisoner is then in custody 
of his bondmen, and if they think him likely to 
avoid trial they may cause his arrest at any time. 
If accused of a crime punishable by death, bail 
is not granted. 

Before indictment, to prevent a suspected per- 
son from escaping before the grand jury sits, 
there is often an examination before a justice 
of the peace or some other magistrate (see page 
30), who has upon complaint issued a warrant 
upon which the suspected person is arrested and 
brought before him. If the officer thinks the 
arrested man should be tried he commits him to 
await action of the grand jury to prison, from 
which he is usually released on bail. He has the 
right to a writ of habeas corpus (see page 138), 



!2(>8 NEW YORK SUPREME COURT 

if he thinks he can per«uade some judge that 
he is unlawfully held. 

When arraigned (from Latin ad and ratio, 
called to judgment) for trial, if he has not money 
to secure counsel the state furnishes him a law- 
yer (see page lil). He is called upon to plead 
guilty or not guilty. If he pleads guilty he is 
sentenced; unless the crime be of murder, in 
which case the plea of guilty is not accepted and 
trial is insisted upon, as in the case of Czolgosz, 
the assassin of McKinley. If he pleads not 
guilty, the trial goes on. The proceedings are 
then similar to those in civil cases. The national 
constitution makes provision that every prisoner 
have a trial speedy and public (89). 

If the prisoner is convicted, the judge pro- 
nounces sentence (from Latin sentire, to think) 
— that is, announces what the punishment will be. 

If the sentence be wholly or partially a ffne 
(see page 142), execution may be levied against 
property as in civil judgments. In some cases, 
like assault, fraud, and libel, a man sentenced to 
pay a fine may be imprisoned till he does so. 

Many cases, both civil and criminal, may be 
tried in either county or supreme court, and 
some may be tried in either supreme or federal 
court (see page 279). 

The supreme court is a court of record ; that is 
the proceedings are taken down by an official 



SPECIAL TERMS 260 

stenographer, and copies may be had by paying 
for the copying. When a case is appealed the 
proceedings of the trial are printed in full, some- 
times filling many large volumes. The important 
decisions are printed, and form precedents (see 
page 253). 

The federal constitution provides that full faith 
and credit shall be given in each state to the 
acts, records, and judicial proceedings of every 
other state (72). 

The proceedings we have described are those 
of courts at trial terms. Each justice also holds 
special terms, where without a jury he hears and 
decides motions, applications for some order de- 
sired, as to change the place of trial. 

Besides the writ of habeas corpus (see page 
138), justices are often called upon to issue a 
mandamus (Latin, we command), to compel a civil 
officer to perform some duty he has neglected. 

Another frequent exercise of power is the 
injunction (from Latin in and jungere, to join), 
restraining an officer from some action ; another 
is a stay of execution of a sentence. 

The legitimate purpose of an injunction is to 
prevent waste and irreparable injury to property, 
and the mandamus and injunction and stay, are 
properly used only when the cases can not be 
reached by ordinary prosecution in the court; 
but in practice they are often issued after hear- 



270 NEW YORK SUPREME COURT 

ing only one side, by a judge not properly in 
jurisdiction, through his favor or his ignorance of 
the facts. There is frequent complaint against 
this icoveriiiueut by injunction. 

Still another writ issued by justices is that of 
quo warranto (Latin, by what warrant), to inquire 
by what authority a person or a corporation exer- 
cises certain powers. 

A writ of error is granted for the purpose of 
bringing before the justice for review the record 
of proceedings in court in which it is claimed by 
the party applying for the writ there have been 
errors of law committed. 

All these powers of the supreme court are 
within their original jurisdiction. But the court 
has also appellate (see page 77) jurisdiction. 

Cases tried in a lower court may be taken by 
the defeated party to a higher court either by 
appeal, in which case the whole case is tried 
over ; or by certiorari (Latin, to be certified), in 
which case the testimony given in the lower court 
is received and only questions of law are reviewed. 

In the colonial courts the appeal was to the 
English privy council. ^ In the judicial system 
of New York there is appeal from the justice's 
court to the county court ; from the county court 
or from trial term in the supreme court to special 
term ; from special term to the appellate division ; 

iBi.16. 



APPELLATE DIVISION 271 

and from the appellate division to the court of 
appeals. 

The appellate division of the supreme court 
(203) is created expressly to hear appjeals from 
the supreme courts. It consists of 22 justices 
appointed by the governor (204) from the 76 (see 
page 569). The state is divided into 4 judicial 
departments (202), the first containing the city 
and county of New York, and the others bounded 
by county lines containing as nearly as possible 
an equal number of inhabitants (see map, page 
568). There are 7 justices in the 1st district, 
and 5 in each of the others. 

For each judicial department the governor 
designates a presiding justice (204), who must 
reside in the department and act during his term 
of office. The others are appointed for 5 years, 
and a majority must reside in the department. 

Not more than 5 justices sit in any case ; 4 
constitute a quorum, and 3 must unite to make 
a decision (203). No justice may sit in review 
of a decision made by him (206). 

The justices of the appellate division in each 
department fix the time and place for holding 
trial and special terms, assign justices, and make 
rules (205). They may also appoint a reporter 
(204); but the seal of the court is that of the 
county clerk of the county in which the court 
is held. 



THE COURT OF APPEALS 273 

The court of appeals consists of a chief judge 
and 6 associate judges, elected on the general 
state ticket for a term of 14 years (210). They 
may not hold any other office (215) and may be 
removed Hke justices (216). They may not 
serve after the year in which they become TO 
years old (217). Vacancies are filled as in the 
supreme court (211). 

Except where the judgment is of death it re- 
views only questions of law (212). It takes 5 to 
constitute a quorum, and 4 to make a decision 
(210). It may correct or reverse all decisions of 
the lower courts except a unamimous decision 
of the appellate division (212). There are some 
hmitations as to cases subject to appeal, but it 
must not depend on amount involved (212, 213). 

The salary of the chief judge is 110,500, of 
the associate judges $10,000; with $2,000 for 
travelling expenses. It elects its own clerk and 
reporter, and has chambers in the state capitol, 
but sometimes sits elsewhere, as in Saratoga 
Springs. For Hst of judges see page 566. 

The appellate court either (1) affirms the de- 
cision of the lower court, (2) reverses it, or (3) 
grants a new trial. In the last case it is tried in 
the same or a similar court, but with a different 
jury. Should the court of appeals affirm a 
criminal conviction, the only further appeal is to 
the governor for pardon, reprieve, or commuta- 
tion (see page 193). 



CHAPTER XXVII 

UNITED STATES COURTS 

In some cases there is possibiKty of further 
appeal, even from the court of appeals. The 
supreme couii; of the United States is the final 
arbiter in all cases (1) in law and equity arising 
under the federal or state constitutions, federal 
laws, or treaties ; (2) in cases of admiralty and 
maritime jurisdiction; and in controversies, (3) 
to which the United States is a party, (4) between 
citizens of different states, (5) between citizens 
of the same state claiming lands under grants 
of different states, and (6) between a state or the 
citizens thereof and foreign states, citizens, or 
subjects (67, 94). From its decisions there is no 
appeal (67, 68). 

This court was a necessity. The decisions of 
state courts might differ, and there must be a 
final resort to establish the law of the nation. 
The confederation had no such tribunal, and the 
decisions of the state courts were capricious and 
conflicting. Without this power the national gov- 
ernment would be at the mercy of the state 
courts, with no power to compel the courts to 

(275) 



27() UNITED STATES COURTS 

perform their functions, or to enforce their 
decisions. ^ 

It will be observed that the appellate power of 
the supreme court is limited to actual cases 
brought before it. When in 1793 President 
Washington asked it to give opinion on the con- 
struction of the treaty with France, it declined 
to comply. 2 

Appeals from a state to a national court are 
allowed only when as decided by the highest court 
of the state the judgment rendered is claimed 
to be in violation of the national constitution or 
of some law ort reaty of the national government 
(67). Such appeals are therefore few. The most 
frequent have been in connection with the 
constitutional prohibition upon the states to 
make a law violating a contract. Several have 
been taken with reference to the 14th amend- 
ment (99). Some states have made laws forbid- 
ding the manufacture and sale of intoxicating 
liquors. The owners of property used for such 
manufacture have appealed to the supreme court 
that the law deprived them of property without 
due process of law. But the supreme court has 
ruled that such loss of property was incidental 
to the legitimate police power of the state. 

1 B. i. 228-236. For full justification and explanation of their 
power, see chief justice Jay in The Federalist, No. 80. 
2 Bi. 257, 488. 



THE COURT OF APPEALS 277 

Besides its appellate jurisdiction the supreme 
court has original jurisdiction (68) (1) in all cases 
affecting ambassadors, and other public minis- 
ters and consuls; (2) in all cases where, the state 
is a party. 

The limitation of original jurisdiction to cases 
brought before it is to ensure that the power of 
the court be judicial, not political. Thus a dis- 
pute arose between the states of Iowa and Mis- 
souri as to the northern boundary. This is fixed 
by the constitution of Missouri as on a parallel 
passing through the rapids of the Des Moines 
river, Iowa held that the rapids were several 
miles south of the point claimed by Missouri, 
and when a Missouri sheriff attempted to serve 
a writ on a man in the disputed territory, the 
Iowa governor ordered out the militia. But it 
was agreed to submit the matter to the supreme 
court. A case was made up and argued, the 
court decided in favor of Iowa, and there was 
no bloodshed. But the supreme court could not 
have acted had not the case been submitted. 

The supreme court is composed of a chief 
justice and 8 associate justices, any 6 constituting 
a quorum (see page 237). It holds one term a 
year at Washington, beginning on the 2d Mon- 
day of October. 

As a single court could not consider all the 
cases that come properly under federal jurisdic- 



278 UNITED STATES COURTS 

tion, congress is authorized (66) to establish such 
inferior courts as may be necessary. It has thus 
far estabhshed three kinds of inferior courts, 
district courts, circuit courts, and circuit courts 
of appeal, besides a court of claims. 

Every state has at least one district court, and 
the larger states have 2 or 3 districts, each with 
its own court. Usually each district has its own 
judge, but in a few cases one judge has charge 
of 2 districts. New York has 3 district courts, 
each with its own judge. ^ 

This court has only original jurisdiction. It 
may try any crime against the United States 
committed within the district, except those pun- 
ishable by death. 

The crime must be a violation of federal 
statute law; there is no national common law 
(see page 253) 2. But when a national law is 
violated, such as robbing the mail, counterfeit- 
ing, or evading revenue laws, the trial must be 
before a national, not before a state court. 

On the other hand violations of state laws, 
such as those against assault, theft, murder, 
etc., can be tried only in state courts, and these 
constitute the vast majority of cases. Where 
there are both national and state laws, as against 
counterfeiting, the government that first arrests 
the offender is allowed to try him and punish him, 

1 B i.328 (see map, page 586.) ^ j^ j 233, 323. 



DISTRICT COURTS 279 

Civil cases arising in the administration of the 
national laws may also be tried in this court. 
The plaintiff who bases his claim on a national 
law may bring suit in a district court ; and if a 
case is begun in a state court, the defendant if 
he bases his defence upon a national enactment 
may have it removed to a national court. ^ 

Bryce says (i.234; see also 228): '^ The French 
or English reader may ask how it is possible to 
work a system so extremely complex, under 
which every yard of ground in the Union is 
covered by two jurisdictions, with two sets of 
judges and two sets of officers, responsible to dif- 
ferent superiors, their spheres of action divided 
only by an ideal line, and their action liable in 
practice to clash. The answer is that the system 
does work, and now, after a hundred years of 
experience, works smoothly. It is more costly 
than the simpler systems of France, Prussia, or 
England, tl^ough, owing to the small salaries 
paid, the expense falls rather on litigants than 
on the public treasury. But it leads to few con- 
flicts or heart-burnings because the key to all 
difficulties is found in the principle that wherever 
federal law is applicable federal law must pre- 
vail, and that every suitor who contends that 
federal law is applicable is entitled to have the 
point determined by a federal court. ' ' 

1 B i.228. 



2 so UNITED STATES COURTS 

There are 9 circuit courts, the 1st and 4th with 
2 judges; each of the others with 3. The 2d 
circuit includes New York, Vermont, and Con- 
necticut. Of the 3 judges in 1901, 2 hve in New 
York city. 

To each circuit there is also allotted a justice 
of the supreme court, who is to hold a court in 
it at least once in 2 years. The court may be 
held by the circuit judge alone, by the supreme 
court circuit judge alone, or by both together, or 
by either or both sitting along by the district 
judges of the district where the circuit court is 
held, ^ thus bringing together judges from the 3 
national courts. 

This court has only original jurisdiction, which 
extends over the higher criminal offences against 
the laws of the United States. Suits under copy- 
right or patent laws are brought in this court. 

In civil cases, ordinarily the amount involved 
must exceed $2, 000 ; but it has jurisdiction irre- 
spective of amount in such cases as those begun 
by the United States against national banks, or 
by persons who claim that some right or privilege 
granted by the United States is infringed by a 
state law. 

In 1891 a circuit court of appeals was estab- 
lished in each of the 9 circuits. 

This court has only appellate jurisdiction; but 



CIRCUIT COURTS 281 

this is final in certain minor cases, as where the 
decision depends on whether the parties are 
ahens or citizens, those in admirahty cases, and 
those arising under the patent, the revenue, and 
the criminal laws. 

It reviews all cases originally begun in district 
or circuit courts except those reviewable only in 
the supreme court. 

Besides this graded system in United States 
courts there is a court of claims similar to that 
in New York (see page 206), to hear and determine 
claims against the United States. As the gov- 
ernment can not in the regular courts be sued by 
a citizen except by its consent (94), ^ this court 
gives persons having claims for contract or 
otherwise an opportunity to bring suit. If this 
court decides the claim to be vahd, congress usu- 
ally passes a law to pay the money. Appeal lies 
to the supreme court. The court of claims is 
composed of a chief justice and 4 associate jus- 
tices, with salaries of 14,500 each. 

Each territory (see page 358) has also a supreme 
court of 3 or more judges, appointed for 4 years. 

The law it administers is partly national, all 
national statutes being construed to take effect, 
where properly applicable, in the territories ; and 
partly local, created in each territory by its own 
statutes. Appeals, where the sum in dispute is 

1 Federalist, Ko. 81, 



282 UNITED STATES COURTS 

above a certain value, go to the national supreme 
court. ^ 

There is considerable territory v^ithin the 
limits of the states that has been purchased by 
the government for arsenals, dock-yards, etc., 
and where state authority does not reach. It is 
provided (69) that in such cases congress may 
determine where the trial shall be held. 

The District of Columbia (see page 360) has a 
supreme court of 1 chief justice and 5 assistant 
justices, with original jurisdiction in law and 
equity. Any one of them may hold a district 
court for the district of Columbia, with powers 
similar to those of judges of the district courts. 

Appeals may be taken to a court of appeals, 
consisting of the chief justice and 2 associate 
justices; and from this, in some cases, to the 
national supreme court. 

All judges of United States courts are appointed 
by the president with consent of the senate ; and, 
except those in territories, for life, or during good 
behavior. Any judge who has held his commis- 
sion 10 years may when TO years of age resign 
and receive for the rest of his hfe the salary he 
has been receiving. 

Bryce says (i.226): "They hold office during 
good behavior, i. e., they are removable only by 

1 B i.555. 



APPOINTED JUDGES 283 

impeachment. They have thus a tenure even 
more secure than that of EngHsh judges, for the 
latter may be removed by the crown on an ad- 
dress from both houses of parHament. More- 
over, the EngHsh statutes secure the permanence 
only of the judges of the supreme court of judi- 
cature, not also of judges of county or other 
local courts, while the provisions of the Ameri- 
can constitution are held to apply to the inferior 
as well as the superior federal judges. ' ' 

And again (i.265): ''The federal circuit and 
district judges, small as are their salaries, are in 
most states individually superior men to the state 
judges, because the greater security of tenure 
induces abler men to accept the post. Being 
irremovable, they feel themselves independent of 
parties and politicians, whom the elected state 
judge, holding for a limited term, may be tempted 
to conciliate with a view to re-election. Plain- 
tiffs, therefore, when they have a choice of suing 
in a state court or a federal court, frequently 
prefer the latter ; and the litigant who belongs 
to a foreign country, or to a different state from 
that in which his opponent resides, may think 
his prospects of an unbiased decision better be- 
fore it than before a state tribunal." 

The salaries of United States judges are as fol- 
lows : 



L>,S4: UNITED STATES COURTS 

chief judge other judges 

supreme court '. 110,500 $10,000 

circuit court of appeals 6,000 

circuit court 6,000 

district court 5,000 

territorial court 3, 000 

supreme court. District of Co- 
lumbia 5,000 4,500 

As in case of the president (see page 371) the 
salary of federal judges can not be increased or 
diminished while they are in office. 

All three United States courts have officers. 
The supreme court has a clerk ; a marshal, with 
duties corresponding with the court duties of a 
sheriff (see page 67); and a reporter. Each cir- 
cuit court of appeals appoints its own clerk and 
inarsha]. 

Each district court has a clerk and a district 
attorney, with duties corresponding with those 
in the county (see page 78), and a marshal. 

The clerk is appointed by the judge. The 
marshal and the district attorney are appointed 
by the president and senate, and are also officers 
of the circuit court. They are under direction 
of the attorney-general (see page 396), who thus 
has a network of federal authorities covering 
the entire country, and independent of state 
courts and state authorities. ^ 

1 B i.234. 



OFFICERS 285 

In each of the smaller districts into which the 
districts are divided the circuit judge appoints a 
United States commissioner, corresponding with 
a justice of the peace (see page 36), who passes on 
inferior maritime questions, assists in collecting 
evidence, makes examinations, and holds for 
trial. Any judge or magistrate of either state 
or federal government may order the arrest of 
a person charged with crime against the United 
States ; and for this purpose a state officer acts 
as United States commissioner, and is responsible 
only to the federal government. 

The appointment of some of the inferior offi- 
cers of the courts (62) is the only executive func- 
tion possessed by United States courts. 

The judgments pronounced in civil cases by 
federal courts are executed by- the officers of 
these courts. All other offences and disorders 
whatsoever are left to be dealt with by the duly 
constituted authorities of the state. They may 
summon national power in case of disturbances ^ 
(see page 198). 

The only chief justice appointed from New York 
has been John Jay* (1789-94). The associate jus- 
tices have been Brockholst Livingstonf (1806-23), 
Smith Thompsonf (1823-43), Samuel Nelson* 
(1845-72), Ward Hunt* (1872-82), Samuel Blatch- 
fordt (1882-93), Rufus W. Peckham (1895- ). 

1 B i.323. * Resigned. f Died in office. 



CHAPTER XXVIII 

CONSTITUTIONALITY OF STATUTES 

The powers of the courts thus far considered 
have been in reference to particular cases brought 
before them. We have now to consider their 
greatest and most important power, to pronounce 
upon the constitutionahty of a law. 

The supreme law of the land is the national 
constitution, the national laws that do not 
violate it, and the treaties made in accordance 
with it ; and this supreme law is law in every 
state, anything in the laws or constitution of the 
state to the contrary notwithstanding (81 ; see 
page 132). 

Bryce says (i.243, 266): ''The duty of . the 
judges is as strictly confined to the interpreta- 
tion of the laws cited to them as it is in England 
or France; and the only difference is that in 
America there are laws of four different degrees 
of authority, whereas in England all laws (ex- 
cluding mere by-laws, privy council ordinances, 
etc.) are equal because all proceed from parha- 
ment. These four kinds of American laws are : 
I. The federal constitution. 
II. Federal statutes. 



THE GREATEST POWER OF THE COURTS 287 

III. State constitutions. 

IV. State statutes. 

" The American law court therefore does not 
itself enter on any conflict with the legislature. 
It merely secures to each kind of law its due 
authority. It does not even preside over a con- 
flict and decide it, for the relative strength of 
each kind of law has been settled already. AU 
the court does is to point out that a conflict exists 
between two laws of different degrees of author- 
ity. Then the question is at an end, for the 
weaker law is extinct. " * * * 

'' The supreme court is the living voice of the 
constitution, that is, of the will of the people 
expressed in the fundamental law they have 
enacted. It is, therefore, as some one has said, 
the conscience of the people, who have resolved 
to restrain themselves from hasty or unjust 
action by placing their representatives under the 
restriction of permanent law. It is the guarantee 
of the minority, who, when threatened by the 
impatient vehemence of a majority, can appeal 
to this permanent law, finding the interpreter 
and enforcer thereof in a court set high above 
the assaults of faction. ' ' 

Again (i.348; see also 248, 375) he calls the 
supreme court '' not so much a third authority 
in the government as the living voice of the con- 
stitution, the unf older of the mind of the people 



:}SS CONSTITUTIONALITY OF STATUTES 

whoso will stands expressed in that supreme in 
strumont. ' ' 

English courts have no such function. An act 
of parliament can not be invalid, because parha- 
ment is omnipotent; in judging between two 
conflicting enactments they have only to examine 
the dates and decide in favor of the latter. But 
congress is not omnipotent ; its powers are Hmited 
by the constitution, and where it has tried to ex- 
ceed those powers its statutes are not laws and 
can not be enforced. ^ 

Sence as the province of parhament is broader 
than that of congress and our legislatures, so the 
power of English courts is narrower than that 
of ours. 

" In England, if a court has construed a 
statute in a way unintended or unexpected, par- 
liament sets things right next session by amend- 
ing the statute, and so prevents future decisions 
to the same effect. But American history shows 
only one instance in which an unwelcome decis- 
ion on the meaning of the constitution has been 
thus dealt with, viz., the decision, that a state 
could be sued by a private citizen, which led to 
the eleventh amendment (94), whereby it was 
declared that the constitution should not cover 
a case which the court had held it did cover. "^ 

But few laws have been pronounced unconsti- 

1 B i.24.5, 430. B i.24a 



LEGISLATIVE INTERFERENCE WITH COURTS 289 

tutional by the supreme court — up to 1901 only 
6. It is the maxim of the court that no law is 
to be so pronounced ' ' unless the defect of power 
to pass it is so clear as to admit of no doubt. 
Every doubt is to be resolved in favor of the 
validity of the law. "^ 

Yet it has suffered attacks, first on account of 
its decision that it had jurisdiction to entertain 
suits by private persons against a state. The 
jurisdiction was removed by the 11th amend- 
ment (see page 288), but the states learned to fear 
it as an antagonist. Its decision in the Dred 
Scott case (1857) that a section of the '' Missouri 
compromise " was illegal, was denounced by the 
republican party, and its doctrine as to citizen- 
ship was subsequently negatived by the 14th 
amendment (99). 

But its reversal in 1871 and again in 1884 of 
its decision of 1870 making greenbacks legal 
tender for .debts went further to shake public 
confidence. The decision of 1870 was rendered 
by a vote of 5 to 3. Congress increased the 
number of judges from 8 to 9, and within a year 
secured an opposite decision by a vote of 5 to 4. 

This suggests the possibility when congress 
and the president are in accord, of affecting the 
decisions of the court by adding to the number 
of judges, and appointing those known to have 



^Justice Swayne, U. S,, vs. Rhodes and others. 



21)0 CONSTITUTIONALITY OF STATUTES 

fixed opinions upon the matter to be decided. 
The New York constitution fixes the number of 
judges (210), but the national constitution leaves 
the number of judges to be fixed by congress 
(66). In 1866 when congress was opposing Presi- 
dent Johnson, to take away his power of appoint- 
ment it reduced the number of judges, then 10, 
by providing that no vacancy should be filled till 
the number was reduced to T. When President 
Grant came into office it raised the number to 9 
and the legal tender decision was reversed by the 
altered court. ^ 

Bryce says (i.366): " Jefferson denounced the 
doctrine laid down in the famous judgment of 
Chief Justice Marshall in the case of Marhury 
V. Madison j thus Jackson insisted that the 
supreme court was mistaken in holding that con- 
gress had power to charter the United States 
bank, and that he, knowing better than the court 
did what the constitution meant to permit, was 
entitled to attack the bank as an illegal institu- 
tion, and to veto a bill proposing to re- charter it. 
Majorities in congress have more than once 
claimed for themselves the same independence." 

As to the effect of public opinion on laws see 
page 503. 

iBi.261. 263. 269. 



Comparison of Courts 



'J 


1 

5 


4 


4 


1 


6 


1 


6 


76 


14 


22 


5 


3 


6 


7 


14 


74 


life 


25 


" 


** 




5 


" 


9 


" 


3+ 
6 


4 
life 


3 


" 





* 


















.o 






■2 






•^ 






r§ 






























•■^ 




o, 


ci, 


cr 


0, 


a, ci, 


cr 


0, 


Cl 




o, 


a, Cl, 


cr 




a, Cl, 


el- 


o, 


ci 






a, ci, 


d- 


0, 


ci. 


er 


o, 


Cl, 


Cl- 




a, Cl, 


cr 


o, 


ci 




o, 


a, Cl, 


ci- 


0, 


a, Cl, 


ci- 


0, 


a, Cl, 


cr 


0, 


a, Cl, 


er 



state 

justices 

county 

surrogate 

supreme 

appellate division, . 

claims 

appeals 

national 

district 

circuit 

appeals 

claims 

supreme 

territorial 

District of Columbia . 

appeals 



12 per day 
$800 to 10,000 
800 to 10,000 
6,000 to 14,000 

X 

5,000 

12,000t 

5,000 
6,000 

4,500 
10,000t 
3,000 
4,500t 
6,000t 



30 

76 

ri 

263 
271 
206 
273 

278 
280 
280 
281 

275 
281 
282 
282 



civil; cr = criminal. 



*o = original; a = appellate; ( 

f The chief judge $500 more. 

I Selected from the 76 justices. 

**Held by district, circuit, or supreme judges. 



(291) 



CHAPTER XXIX 

TAXATION 

Taxation (from Latin taxare, to touch sharply) 
is the most important function and the most vex- 
atious problem of government. It has caused 
most of the pohtical revolutions, as for instance 
our OTvn (see page 127), and the French in 1789. 

Money must be raised. There are officers and 
soldiers and sailors and vt^orkmen to be paid, 
buildings to be erected and maintained, supphes 
to be furnished. The expenditure for pubhc 
schools alone in New York was in the year 1900 
nearly 35 millions. New York city spent in 
1901 nearly 100 millions. The civil war cost the 
national government in 1865 a billion dollars 
for a single year. The entire amount of money 
spent by the local, state, and national govern- 
ments averages more than SlO a year for every 
man, woman, and child in the United States. 
In some cities it averages more than $30 a year. 

All these vast sums must be raised by taxes, 
the enforced, proportional contribution from per- 
sons and property levied by the state by virtue 
of its sovereignty for the support of government 
and for public needs. ^ In other words taxes are 

1 Cooley. 

(392) 



WHY TAXES ARE JTJST 293 

levies upon private property for public purposes. 

An enforced contribution is necessary, because 
voluntary contributions would be unreliable. 
The continental congress depended upon the vol- 
untary action of the states to collect the taxes 
apportioned, and the taxes were uncollected (see 
page 330). The contribution must be propor- 
tional, that all may be treated ahke. It is levied 
upon property as well as persons, because prop- 
erty is often owned by non-residents, and is 
always the measure of abihty to pay. It is 
levied by virtue of the sovereignty of the state 
(see page 118), because otherwise there would 
not be power of collection. 

The justice of taxation is manifest. The state 
demands and receives taxes from the subjects of 
taxation within its jurisdiction that it may be 
enabled to carry into effect its mandates and 
perform its manifold functions ; and the citizen 
pays from his property the portion demanded in 
order that, by means thereof, he may be secured 
in the enjoyment of the benefits of organized 
society. 1 No man objects to the requirement 
that he shall put postage- stamps on letters, or 
pay his bills for city water, and yet these are 
forms of taxation; in a well managed govern- 
ment all taxation is equally for the benefit of 
those who pay it. 
Cooley. 



294: TAXATION 

It might be objected that some men are taxed 
for what they can not get benefit from, as when 
a man without family is taxed for schools. But 
the reply is that schools are necessary not only 
for the children who go, but for the general wel- 
fare and safety of the community, in which 
every man shares (see page 304). 

But while the justice of equitable taxation for 
necessary public purposes is recognized, the 
people taxed want to be assured that the money 
raised is needed for these purposes and is used 
for them; and that it is so raised that every 
man may bear his proportional share. It is the 
glory of the English system of government that 
from the first it has insisted that they who pay 
the taxes shall have voice in levying them (see 
pages 120 to 123), and the colonies dissolved 
their allegiance to England when George III 
attempted to impose upon them taxation with- 
out representation (see page 127). 

In the United States all power of taxation 
rests in the people and their representatives 
(5, 26, 47, 49, 172, 177, 178, 181, 191, 230-236, 
249, 250), so there is no excuse for unwillingness 
to pay one's share of the expenses of govern- 
ment as provided by law. 

Indirect Taxes 

Some taxes are indirect ; that is, they are not 
assessed upon persons as individuals, or accord- 



INDIRECT TAXES IN NEW YORK 295 

ing to their wealth ; and though assessed upon 
one person are really paid by another. Practi- 
cally most of the state tax is raised in this way, in 
1901 only 10 J out of 26 millions being raised 
by direct tax. Thus the excise law (see page 
203) requires every liquor dealer in New York 
city to pay 1800 a year for the privilege, but he 
gets it back by raising the price or lowering the 
grade of the liquor sold, so that the tax is eventu- 
ally paid by his 'customers. This law produced 
the state in 1901 more than 4 millions, or more 
than i of the money required for the state gov- 
ernment. 

Such taxes on business or occupations, fran- 
chises, privileges, etc., are called specific (from 
Latin species, a particular thing, and facere, to 
make), as opposed to general taxes which, apply 
to all ahke. 

The collateral inheritance tax is also a large 
source of reyenue to the state. On estates of 
$10,000 or more there is a tax of 1 ^ for money 
distributed among lineal descendants or those in 
close relation; and on estates of $500 or more of 
5 % when it is distributed among those not lineal 
descendants or in close relation. Bequests to 
religious corporations are excepted. This tax 
amounted in 1901 to more than 4 miUions. 

A recent and most profitable addition to the 
indirect taxes of the state is that on franchises 



TAXATION 

(see page 154) granted to corporations. ^ For- 
merly corporations had been taxed only on their 
real property (see page 147) ; but it is manifest 
that the exclusive privilege of running electric 
cars on a busy street is in itself property and 
should be taxed as such. So a tax is levied upon 
most corporations of J miU upon each 1 ^ of 
annual dividends, when such dividends amount 
to 6 '/c or more upon the par value of the stock ; 
otherwise IJ miUs upon the capital stock of the 
corporation employed within the state. This 
produced in 1901 about a miUion, and the entire 
amount received from corporations was nearly 
5 millions. 

The national government is supported entirely 
by indirect taxes. These include excises (from 
Latin ex and caedere, to cut), commonly referred 
to as the internal revenue, a tax upon the pro- 
duction of goods, as for the distillation of 
whiskey, the manufacture of beer and tobacco, 
or the refining of oil ; and duties on imports (from 
Latin in and portare^ to carry), goods brought 
into the United States from other countries. 
Duties on exports are forbidden (48). 

The states are forbidden (52) to levy duties up- 
on imports or exports. This is not only to re- 
serve the revenue to the national government 
but to ensure uniformity of duties (26). Under 
the confederation (see page 324) each state could 

1 558:1901 ; the original law was passed in 1899, 



INDIRECT TAXES; THE TARIFF 297 

levy whatever duties it choose, and there was 
much jealousy and retaliation. 

The rate of duties levied on imported goods is 
called the tariff. When levied merely to support 
the expenses of government it is a revenue tariff; 
but it is manifest that the articles upon which a 
tariff is laid will be higher in price, and hence 
those who manufacture the ^me articles here 
will be able to command a higher price for their 
goods. A tariff so adjusted as to favor certain 
industries which it is desired to protect is called 
a protective tariff. 

The theory of protection may be illustrated 
thus. Suppose silk which could not be manu- 
factured here for less than 12.00 a yard could be 
imported from France so as to sell at 11.50 a 
yard. Manifestly no such silk would be made 
here, because it could not be sold except at a 
loss. Now if a duty of 60 % be put upon French 
silk, it must^be sold here at 11.50 + .90 = 12.40 
a yard, and hence the American manufacturer 
can sell at the same price with a profit. 

This has been an issue more or less prominent 
between the political parties since the first high 
protective tariff was laid in 1832, when South 
Carolina refused to pay the duties, attempting 
what was called nullification (from Latin nullus 
none ; see page 360). Those opposed to a pro- 
tective tariff declare for free trade, arguing that 




298 TAXATION 

in the case given everybody in the country who 
wants that kind of silk has to pay 40 cents a 
yard extra, for the benefit of a manufacturer. 
On the other hand it is argued that industries 
thus estabhshed have often eventually reduced 
the price of the article far below what the im- 
ported articles used to cost. 

Duties may be specific (see page 295), that is so 
much upon every pound or yard, or gallon ; or 
ad valorem (Latin, according to value), a percent- 
age on the value ; or both combined. 

In emergencies the national government has 
levied additional indirect taxes. Thus in July, 
1862, when the civil war made much money 
needed, besides requiring all valuable papers to 
be stamped, duties were levied on many manu- 
factured articles, on carriages and plate, on vari- 
ous trades and occupations, this revenue amount- 
ing in 1866 to more than 300 milhons. During 
the war with Cuba stamps were required on 
many business documents, but most of them 
were discontinued after July 1, 1901. 
Direct Taxes 

Direct taxes are (1) those laid on individuals 
as individuals, like the poll-tax (see page 159); 
and (2) those laid upon property at a certain per- 
centage upon its assessed value. 

The national government may levy direct 
taxes, but only in proportion to the population 



DIRECT TAXATION 299 

(47) ; in other words two states of equal popula- 
tion must pay the same amount, though one be 
ten times as wealthy as the other. The power 
has been exercised only 5 times — in 1798, 1813, 
1815, 1816, and 1861, in each case for only 1 
year. From 1861 to 1871 the national govern- 
ment collected a tax on incomes. In 1894 a law 
was passed taxing all incomes of more than 
^1,000 a year; but it was pronounced by the 
supreme court unconstitutional because it was a 
direct tax and not apportioned among the states 
according to population. 

The state government levies a small direct tax 
(see page 300), but nearly all the direct taxes are 
local and levied by the school district (see page 
51), the town (see page 32), the county (see page 
65), the village (see page 88), and the city (see 
page 99). 

The town, county, and state taxes are all col- 
lected together by the collector (see pages 39, 91) 
or treasurer (see pages 91, 101); and are paid 
over on or before Feb. 1 to the county treasurer 
(see page 69); except that town collectors pay 
over to the highway commissioners (see page 11) 
the sums raised for highways and bridges, to the 
overseers of the poor (see page 10) the money 
raised for that purpose, and to the supervisor 
(see page 34) the money raised for town charges. ^ 

1 158:1901. 



SCO TAXATION 

The county treasurer pays over to the comp- 
troller (see page 200) the amount due the state. 

The amount of tax levied upon each piece of 
property depends upon the assessment (see page 
38). This is made originally by the town, village, 
or city assessors (see pages 38, 91, 104); is equal- 
ized by the board of supervisors (see page 65), 
with appeal to the tax commissioners (see page 
206) and revision by the state assessors (see page 
208), and final determination by the board of 
equalization (see page 212). This gives the aggre- 
gate assessed valuation in the state, and the rate 
of state tax is found by dividing the amount to 
be raised by the aggregate assessment. In 1901 
this was as f oUows : 

Assessed valuatioii Amount required State tac^ 

15,461, 302,Y52 110,704,153.39 1.00196 
The same assessed valuation is used for the 
much larger local taxes, so that owners of real 
property are tempted to secure assessment below 
the real value. ^ On the other hand, since the con- 
stitution limits the^amount of indebtedness of 
any city to 10 ^ of the assessed valuation, a 
corrupt administration that wanted to raise 
more than that amount might increase the assess- 
ment accordingly. The charter for 2d class cities 
limits the amount of taxation in any year to 
2 %, and in 1900 the assessment of property in 

1 B i.493. 



DIRECT TAXES; PERSONAL PROPERTY 301 

Syracuse was arbitrarily raised J above its value 
in order to make it possible to levy the amount 
the extravagant administration needed to pay 
its bills. 

Some property is exempt from taxation, such 
as national, state, and municipal public build- 
ings, school-houses, churches, burying grounds, 
the property of scientific and agricultural socie- 
ties, of literary and charitable institutions ^ 
not conducted for pecuniary profit, and a 
homestead so far as purchased with the proceeds 
of a pension. 2 National and state bonds and 
municipal bonds issued to retire existing indebt- 
edness are also exempt. 

So great is the temptation to evade taxation of 
personal property (see page 151), that it pays 
only a fraction of its proportionate burden of 
taxation. It is often concealed ; and when this 
is impossible there is much latitude of conscience 
in swearing to the amount of debts that should 
be charged up against it, the law requiring 
assessment only upon personal property owned 
in excess of personal debts. ^ 

For this and other reasons many have advo- 
cated what is called the single tax, on land only, 
which can not be concealed and may be levied 
uniformly, the theory being that the taxes thus 
paid wiU be recovered by rise in rental and thus 

1 B i.497. 2 618:1901. ^b i.492; Hadley, p. 76. 



302 TAXATION 

by increased prices of goods made or sold on the 
premises, or by people who live upon the prem 
ises, and so on. 

A constitutional amendment adopted in 1901 
forbids the legislature to exempt from taxation 
on real or personal property any person, associa- 
tion, firm, or corporation (169 a). 

The rate of duties levied on imports is in some 
cases affected by treaties (see page 467) of reci- 
procity, under which the United States grants a 
lower rate of duty than to those from other 
countries, on condition that like reduction is 
made upon certain goods imported there from 
the United States. President Koosevelt said, in 
his message for 1901: 

^^Eeciprocity must be treated as the hand- 
maiden of protection. Our first duty is to see 
that the protection granted by the tariff in every 
case where it is needed is maintained, and that 
reciprocity be sought for so far as it can safely 

be done without injury to our home industries. 
* * * 

*' Subject to this proviso of the proper protec- 
tion necessary to our industrial well-being at 
home, the principle of reciprocity must com- 
mand our hearty support. The phenomenal 
growth of our export trade emphasizes the 
urgency of the need for wider markets and for a 
hberal poHcy in dealing with foreign nations. 



RECIPROCITY 303 

Whatever is merely petty and vexatious in the 
way of trade restrictions should be avoided. The 
customers to whom we dispose of our surplus 
products in the long run, directly or indirectly, 
purchase those surplus products by giving us 
something in return. Their abihty to purchase 
our products should as far as possible be se- 
cured by so arranging our tariff as to enable 
us to take from them those products which we 
can use without harm to our own industries and 
labor, or the use of which will be of marked 
benefit to us."" 

Some times improvements are needed which 
it would be impossible to pay for at once, and 
of such permanent importance that it seems 
just that a subsequent generation should pay for 
it in whole or in part. For this purpose bonds 
(see page 46) are issued (27). The state is not 
allowed to give its credit in aid of any individual 
association, ^ or corporation (230, 249) ; and ex- 
cept in case of war (232) may not contract debts 
to exceed a million dollars (231), except by vote 
of the people at a general election (233). The 
restrictions on towns, counties, villages, and 
cities (250) have already been noted (see pages 
32, 65, 94, 100). 



CHAPTEE XXX 

THE COMMON SCHOOLS 

Since in a republic every citizen is a voter, its 
safety requires that its citizens be sufficiently 
schooled to vote intelligently, and its prosperity 
demands that they have an education fitting 
them for improvement and enjoyment. 

This has been recognized in the United States 
from the first. The ordinance of 1Y8T (see page 
609) declares: 

^ ' Eeligion, morality, and knowledge, being 
necessary to good government and the happi- 
ness of mankind, schools and the means of edu- 
cation shall forever be encouraged. ' ' 

Education is the republic's self-defence. Of 
all the sources of poverty and crime ignorance is 
the most fruitful ; and besides the harm they do 
individually, ignorant and vicious voters unite 
to elect officials of their kind, which produces 
corrupt laws and corrupt administration. Massa- 
chusetts makes it the duty of her teachers to 
impress upon their pupils " the principles of 
piety and justice, and a sacred regard for truth, 
love of their country, humanity, and universal 
benevolence; sobriety, industry, and frugahty, 

(304) 



HISTORY OF EDUCATION IN NEW YORK 305 

chastity, moderation, and temperance ; and those 
other virtues which are the ornament of human 
society, and the basis upon which a repubhcan 
constitution is founded. ' ' 

New York was fortunate in that its early set- 
tlers, the Dutch, had learned in their own coun- 
try to appreciate education. As early as 1629 
the West India company required the colonists 
to supply a minister and a schoolmaster, and 
the Dutch schools were always free. After 
the English conquest the Dutch schools were left 
undisturbed, but they received no government 
support, the idea of taxing people for the sup- 
port of schools not prevailing in England. Gov. 
Cornbury, who came to office in 1702, established 
schools, chiefly as a means of driving out the 
Dutch language and establishing the church of 
England. 

In 1793 the regents (see page 318) recom- 
mended the establishment of a system of com- 
mon schools; and in 1795 the first public school 
law was passed, appropriating $50,000 a year 
for 5 years to n^intain public schools. In 1812 
this annual appropriation was made permanent, 
and towns were authorized to levy a tax equal 
to their share of the appropriation. In 1814 
this town tax was made compulsory, under pen- 
alty of losing the appropriation. 

These amounts were not sufficient to furnish 



I 



.30(> THE COMMON SCHOOLS 

a good school : so it was customary to make up 
the deficiency by a rate bill, each parent paying 
his share in proportion to the attendance of his 
children. In 1867 this rate bill was abohshed, 
and since then the state has provided for free 
common schools, wherein all its children may be 
educated (256). 

Even the text -books are furnished in some 
schools to all children, and in all schools to chil- 
dren whose parents are unable to pay for them, 
the object being to make education possible to 
every child. 

But some children did not care to go to school, 
and were not compelled to. Some were not al- 
lowed to go, their parents profiting by their 
labor. Some nominally went but were frequent 
traants, being absent so much that they did more 
harm to their classes than they got good them- 
selves. 

So in 1894 a compulsory law was passed, which 
requires that (a) every child between 14 and 16 
not regularly employed, and (b) every child be- 
tween 8 and 12 shall be in attendance upon in- 
struction as many days between Oct. 1 and June 
1 as the pubhc school shall be in session; and 
that (c) every child between 12 and 14 shall 
attend school upon at least 80 consecutive school 
days, and in addition upon all school days when 
not usefully employed, and be instructed in at 



ATTENDANCE FREE AND COMPULSORY 307 

least the common branches of reading, speUing, 
writing, arithmetic, Enghsh grammar, and 
geography. ^ 

To execute this law attendance or truant officers 
(see page 44) are appointed, and truant rooms or 
truant schools are often established, where tru- 
ants are confined, clothing as well as food being 
furnished when necessary. Parents are liable to 
fine and imprisonment if they do not either 
cause their children between 8 and 16 to attend 
school or notify the truant officer that they are 
unable to do so. Employers are fined $50 if 
they employ children between 8 and 12 during 
the time the public school is in session, or em- 
ploy any child between 12 and 14 who does not 
present a certificate that he has complied with 
the law regarding attendance. 

If a child attends a private school, the charac- 
ter of the institution and the number of hours 
a day must be the same as in the pubhc schools. 

The unit of the common school in New York 
is still the district school (see page 51); which 
may become a union free school (see page 57), 
and in villages and cities has greatly enlarged 
powers (see pages 93, 107, 113). 

As there are some 12,000 of these districts, the 
need was soon recognized of some sort of super- 
Tision (from Latin super, over, and videre, to 

1 For further particulars see Bardeen's School Law, p. 43, 



308 



THE COMMON SCHOOLS 



see). The history of school supervision in New 
York is outhned in the adjoining chart. The 

School Supekvision in New Yokk Original SChOOl act 





By 

state 
officer 


By 

county 
officers 


By 

city 
officers 


tmvn *^^^ commissioners 

officers of schools, who 

• 












were to examine 


1795 










and license teachers 


1818 












and advise with 
trustees as to hiring 


1841 










them. The law of 


1847 _ 










1812 provided also 


1 
1851 












for inspectors who 
were associated 


1856 

j 












with the commis- 


1901 










sinners in examin- 



ing teachers. In 1843 in place of commissioners 
and inspectors town superintendents were created, 
with the same powers. In 1856 this office was 
abolished, and there has since been no town 
supervision. 

The act of 1841 provided for deputy superin- 
tendents for each county, with 2 in counties of 
more than 200 teachers, who could also examine 
and license teachers, their hcenses being vahd 
over aU the towns within their jurisdiction. In 
1843 the name was changed to county superin- 
tendent. The office was abohshed in 1847, and 



GROWTH OF SUPERVISION 309 

was succeeded in 1856 by that of school commis- 
sioner (see page Y3), which still continues. 

Cities (see map, page 572) and villages may em- 
ploy superintendents (see page 108), who do not 
teach, but supervise the teaching, and under di- 
rection of the board have general management of 
the schools. This office was first created in 1851, 
and later was recognized by the state, a spe- 
cial appropriation of $800 being made for each 
in cities and villages of not less than 5,000 in- 
habitants (see map, page 571). Cities are usu- 
ally outside of commissioner districts, but vil- 
lages are usually under jurisdiction of the school 
commissioner. 

It was manifest that supervision should extend 
farther, and unite the pubHc schools of the state 
under a uniform sysfcem. So in 1812 the office 
of state superintendent of schools was created, 
and Gideon Hawley was the first to ffil it. In 
1821 he wasi supplanted by pohtical intrigue, and 
the legislature abolished the office, transferring 
its duties to the secretary of state. In 1854 the 
office of state superintendent of public instruction 
was created, and has since been continued. 

He is elected by joint ballot (see page 201) for 
3 years, the term of office beginning April 7, 
1901, and each third year thereafter. His salary 
is 15,000; and he appoints 2 deputies at $4,500 
and 14^000. He gathers information from the 



;nO THE COMMON SCHOOLS 

reports of commissioners and superintendents as 
a basis for his annual report to the legislature ; 
recommends needed legislation ; and advises and 
directs as to the management of the pubhc 
schools. He has charge of the normal schools, 
Indian schools, and schools for defectives (see 
page 315) ; and is ex-officio a regent of the Uni- 
versity (see page 319), and a trustee of Cornell 
imi versify (see page 323), and the Syracuse asylum 
for the feeble-minded. He has charge of the 
licensing of teachers (see page 55), the normal 
schools and training classes (see page 313), and 
the school libraries. 

His greatest power is judicial. In questions of 
school law he has coordinate jurisdiction with 
the supreme court. Parties aggrieved have the 
option of appeahng to the courts or to the state 
superintendent. If they take the latter course, 
the superintendent's decision is final, and not 
subject to review in any court. 

He has charge of the apportionment on Jan. 20 
each year of the public school money, or educa- 
tion fund, 1 which is made up principally from 3 
sources. 

The common school fund, established in 1805, 
came from the sale of half a million acres of 
state lands, and is increased by $25,000 each year 

1413:1897. 



PUBLIC MONEY 311 

from the United States deposit fund. Its amount 
in 1901 was about 4 J millions. 

From this fund $170,000 is appropriated each 
year for the support of common schools ^ and 
$7,000 for Indian schools. 

The United States deposit fund has already been 
described (see page 74). 

The constitution provides (258) that these two 
funds shall be kept inviolate. ^ 

From this fund $25,000 is appropriated each 
year to the increase of the common school fund 
(258), $75,000 to the support of common schools, 
and $34,000 to the academic fund (see page 321). 

The free school fund is the term applied to the 
annual appropriation for common schools by the 
legislature, which began in 1851 at $800,000, 
and in 1890 was increased from 3 J to 3 J millions. 
With the addition of $170,000 from the common 
school fund and $75,000 from the United States 
deposit fund, this gives a total of about 4 millions. 

After setting apart the amounts for salaries of 
school commissioners and superintendents and 
for Indian schools, and $6,000 for contingent 
expenses, with some comparatively small sums 
for specific appropriations, there is first granted a 
teacher's quota of $100 to each district for every 



1 556:1894. 

2 For more detailed history of these funds, see The School 



Bulletin, June, 1886 (xii.llO), 



312 THE COMMON SCHOOLS 

qualified teacher employed for 32 weeks. The 
remainder is then divided equally among the 
counties of the state according to population, 
excluding Indians. 

The school commissioners (see page 74) appor- 
tion the amount among the districts in propor- 
tion to the aggregate days of attendance, send to 
the county treasurer and to the state superin- 
tendent duplicate certificates showing the 
amounts apportioned to each district, and certify 
the same to the supervisor of each town. The 
moneys so apportioned are payable on April 1 to 
the county treasurers (see page 69), who im- 
mediately pay over to each supervisor (see page 
34) the money apportioned to his town. The 
supervisor pays out the money only on written 
orders of trustees ; but where the district has a 
treasurer (see page 57) or the collector has given 
bonds, the supervisor pays the district money 
over to him. 

The school year must be not less than 32 weeks, 
including the week of the teacher's attendance 
at institute, and the following legal holidays: 
Jan. 1, Feb. 12, Feb. 22, May 30, July 4, the 1st 
Monday in September, the 1st Tuesday after the 
1st Monday in November, the last Thursday in 
November, and Dec. 25. The 1st Friday after 
the 1st Monday in May is observed as Arbor day. 

It is a proud distinction of the New York edu- 



TRAINING OF TEACHERS 313 

cational system that from the beginning it has 
required that the persons who examined teachers 
for Hcenses should not be those who employed 
them, thus establishing a double judgment as to 
the teacher's fitness. New York has also been 
most Uberal in its provision for the training of 
teachers. 

The system of training classes was established 
in 183-i by the regents (see page 318), and was 
the first provision for the training of teachers 
made in the United States. In 1889 they were 
transferred to the department of public instruc- 
tion. A minimum grant of $500 is given to 
each class, with a proportionate share for attend- 
ance of all pupils in excess of the minimum 
number of 10. ^ There are also training schools 
in cities, mostly with courses of 2 years. 

A teachers' institute is held once every year in 
every commissioner district ; it lasts a week, and 
attendance 6t teachers is not only free, but com- 
pulsory. The first institute was held in 1813, 
and in 1817 institutes came under state control, 
$60 being given as aid to each county. This 
amount was increased in 1857 to $120, and in 
1860 was made $8,000 for the state. In 1899 it 
was $40,000 for the state. In 1862 local author- 
ities were allowed to pay teachers regular salary 
during their attendance at institutes. Since 

1 For requirements, see Bardeen's School Law, page 78, 



:\\\ THE COMMON. SCHOOLS 

18S5 this payment and the attendance of teach- 
ers have been compulsory, while schools in the 
commissioner district were compelled to close 
during institute week, except in cities. In 1890 
the privilege of not closing was extended to vil- 
lages of 5,000 inhabitants. City institutes were 
begun in 1896. A corps of institute instructors 
was organized in 1881. 

Summer schools similar in plan but extending 
over three weeks were established in 1896. They 
are held during the summer months. Attend- 
ance is free, but teachers do not receive salaries 
for the time in attendance. 

Besides its normal schools (see map, page STY), 
the first of which was established in 1844, and 
for which its appropriations have always been 
liberal, it has established pedagogic depai'tments 
in many of the leading colleges, and grants 
special certificates to those who complete the 
course. 

Of course education reaches beyond what are 
called schools. Public libraries, museums, art 
galleries, parks, and statues promote intelligence 
and refine the taste. Taxation for these pur- 
poses is a pubHc benefit. 

It is not easy to draw the fine between educa- 
tional and charitable or penal institutions. While 
the latter are not public schools, they supple- 
ment their work. The theory of state education 



SCHOOLS FOR DEFECTIVES 315 

is that every child shall have an equal opportun- 
ity for education. Hence orphans must be pro- 
vided for; and there must be the special schools 
required for teaching the blind, the deaf, the 
feeble-minded, and these schools for defectives 
are all under charge of the state superintendent 
(see page 309). 

The insane, too, are now so kindly and wisely 
treated that their unhappiness is alleviated, and 
not seldom they are restored to reason. In 1896 
a new law was passed putting the charge of 
insane asylums in the hands of the commission 
in lunacy (see page 208), under conditions that 
ensure intelligent supervision. A complete 
record of patients is kept. To guard against the 
incarceration of persons not really insane, com- 
mitment to an asylum may be made only upon 
order of a judge of a court of record upon a 
certificate of lunacy made by 2 qualified medical 
examiners in lunacy ; from which commitment 
appeal may be made to a justice of the supreme 
court, and a patient may always be released by 
habeas corpus (see page 138). Where the patient 
has relatives able or friends willing to pay his 
expenses in the asylum there is a charge not to 
exceed $10 a week; otherwise the charges are 
paid by the state. There is a special hospital for 
insane criminals. 

Even sane criminals are not looked upon as 



;n(> THE COMMON SCHOOLS 

hopeless. The Ehuira reformatory has restored 
to useful citizenship many boys who in mere con- 
<finement would have been confirmed in crime, 
and similar institutions have been established (see 
map, page 564). Prisoners may receive indeter- 
minate sentences, the periods depending on good 
behavior; and those in the state prisons or in the 
Eastern New York reformatory under sentence 
for felony with maximum penalty of 5 years or 
less and not before convicted of crime may be 
released upon parole, and after a period of good 
behavior even discharged by the commission of 
prisons (see page 204), which for this purpose 
becomes a parole board. ^ On discharge from 
prison both state and national laws require that 
each prisoner who has served not less than 6 
months be furnished a plain suit of clothes and 
^5 in money. ^ 

^The magnitude of the charitable and reforma- 
tory work of the state is seldom realized. The 
state appropriation in 1900 for insane asylums 
was 5 J millions, while the entire state appropria- 
tion for schools was a little over 4 milHons. 

The latter amoUnt was however increased by 
local assessment to 34J millions, a noble amount, 
in which New York naturally leads the nation. 
But she is at the head in more than in expendi- 
ture. In her systems of supervision, examination 

1 260:1901. 2 471:1879 ; 18 Stat. L. 479. 



DISTINCTION OF THE EMPIRE STATE 317 

of teachers, and training of teachers, New York 
represents on the whole the best that has so far 
been developed; while in her system of encour- 
agement of higher education, to be treated in the 
next chapter, she has stood until within recent 
years absolutely alone. 



CHAPTEE XXXI 

ACADEMIES AXD COLLEGES 

While it is generally admitted that the state 
should provide common schools, it is sometimes 
questioned -whether it should furnish secondary 
education. The conviction prevails, however, 
that high schools not only " promote for the gen- 
eral welfare" (1), but have such a tendency 
to prolong the attendance in the lower grades 
even of pupils who never reach the high school, 
that by a sort of capillary attraction they tend 
to keep the common schools full and thus to 
make the expenditure for the lower grades more 
effective. 

In its encouragement of secondary instruction 
by special appropriations Xew York was the 
pioneer and is still far in advance of all other 
states. The regents of the University of the 
State of New York were created in 1T8J: to take 
charge of Columbia college. In 1787 they were 
reheved of that duty, but were authorized to 
incorporate academies and colleges and to confer 
degrees. Of their services to common schools 
we have spoken (see page 305\ In 1813 the 
present method of election by joint baUot (see 

(318) 



THE LITERATURE FUND 319 

page 201) was established, the term being for 
life, without salary. In 1894 the board of 
regents was made permanent by incorporation 
into the constitution (257). The number cannot 
be made less than 9. There are now 19 elected 
regents besides 4 ex-officio (see page 210). For 
officers see page 579. 

In 1784 the unappropriated lands of the state 
were laid out in townships 6 miles square, and in 
each a lot of 300 acres was reserved for the min- 
ister of the gospel and one of 690 acres for schools. 
In 1786 there was reserved in each township a 
gospel and school lot, which has formed the basis 
for certain local school funds; and another ^' for 
promoting literature ". These last lots with 
other lands appropriated by the legislature, 
were sold and the proceeds, with those of cer- 
tain lotteries, were converted into a literature 
fund (158), which was placed under control of 
the regents. In 1827, the legislature added 
$150,000 on condition that the income be dis- 
tributed among the incorporated academies in 
proportion to the number of pupils instructed in 
classical or higher English studies. The income 
has since been about 112,000; and to this has 
been added since 1838 a further sum of $28,000 
from income of the United States deposit fund 
(see page 74). Still further additions were made 
by annual grant of the legislature, so that the 



320 ACADEMIES AND COLLEGES 

amount granted for each pupil was sometimes 
$20 a year. ^ 

Since the amount received by each school was 
proportionate to the number taking advanced 
studies, there was temptation to put into such 
studies pupils who were not prepared for them. 

Accordingly in 1865 a system of regents exam- 
inations was instituted, the regents sending out 
questions in arithmetic, geography, grammar, 
and spelling, the answers being sent to the re- 
gents office for marking, and pupils not being 
recogDized as pursuing advanced studies unless 
they had passed one of these examinations and 
received from the regents a preliminary certifi- 
cate. This at once reduced by more than J the 
number of pupils claimed to be pursuing advanced 
studies, and compelled academies to give thorough 
instruction in elementary branches. 

This system of examinations, originally in- 
tended only as a check upon fraud, became so 
useful and valuable that it has been extended to 
all the subjects of the curriculum, and even to 
professional branches, medical, dental, veterin- 
ary, business, and library. The volume of ques- 
tions for 1900-1901 contains 508 pages. Eegents 
examinations are required of all candidates for 
admission to the bar and for medical and other 
degrees. 

1 See Bardeen's Roderick Hume, page 38. 



SUPERVISION OF THE REGENTS ')"i L 

The academic fund is now made up of the 
$12,000 from the hterature fund, $34,000 from 
the United States deposit fund, and 160,000 from 
the general fund, ^ with a further annual appro- 
priation of $244,000, so that each academic school 
shall receive (1) $100; (2) a grant for books 
and apparatus equal to that raised locally, but 
not exceeding $250 ; (3) a proportionate share of 
the balance on the basis of attendance of aca- 
demic students. ^ 

Since 1834 appropriations have been made to 
academies for books and apparatus, and the re- 
gents now lend books and pictures for school use. 

In 1835 the regents began to publish annual 
reports, containing fuller educational statistics 
than had ever before been collected. Besides 
these reports, which are now published annually 
in several volumes, the regents have issued a 
great number of publications, both directly of 
their own work, and as in charge of the work of 
the state library and museum, the state geolo- 
gist, palaeontologist, botanist, etymologist, etc. 

The supervision of the regents was originally 
limited to colleges and academies, the latter in- 
corporated private schools for instruction in 
higher branches of education. ^ In 1822 the 
trustees of the academy at Goshen were author- 
ized to exercise the powers of trustees of the 

1 378:1892. 2 498:1901. ^ 378:1892. , 



822 ACADEMIES AND COLLEGES 

village school district, and in 1853 an act was 
passed for the organization of union free schools ^ 
(see page 57) with academic departments, which 
when admitted under visitation of the regents 
were to have all the privileges of academies. 
These schools soon began to displace the acade- 
mies, most of which have been forced to unite 
with the union schools in their villages. The 
advantages of being a ' ^ regents school ' ' are so 
great that most of the larger union schools have 
come under their visitation. The conditions of 
admission are as follows: 

1. Schools are named according to the number 
of years in the academic course, those giving 4 
years being higli schools, 3 years senior schools, 2 
years middle schools, and 1 year junior schools. 

2. Such schools are admitted on proof that 
they possess an approved library to the value of 
$400, 1300, and $200, respectively, and such ap- 
paratus as is required for teaching the subjects. ^ 

The state superintendent, through a provision 
in the law for the employment of teachers in 
cities and villages (see page 108) making one of 
the quahfications graduation from a high school 
approved by him, has established a course of 

1 433:1853. 

2 For details of procedure, see Bardeen's School Law, pp. 
59-61. 



CORNELL UNIVERSITY 323 

study which must be adopted by schools wishing 
this approval. ^ 

Some states make the university a part of the 
public school system. This New York has never 
done; but its college land script fund, from the 
sale of western lands granted in 1862 by the 
Uuited States for support of state agriculture 
colleges, is held by the state for the benefit of 
Cornell university; 5^ each year being paid to 
the university. ^ In return the university gives 
free scholarships to 600 students each year, who 
are selected, one from each assembly district (see 
page 227), by competitive examinations held on 
the 1st Saturday in June under direction of the 
state superintendent. Candidates must be at 
least 16 years, and must have attended the pub- 
lic schools or academies of the state for 6 months 
of the preceding year. Cornell also receives y^ 
of the money received under the national law of 
1887 for establishing agricultural experiment sta- 
tions in connection with the colleges, the other ^ 
going to the station at Greneva. ^ It is also in 
charge of the state school of forestr}^. 

The constitution provides (259) that no public 
money shall be used, except for examination and 
inspection, in aid of any school under the control 
or direction of any religious denomination, in 
which any denominational doctrine is taught. 

1 See Bardeen's School Law, page 60. 2 413:1897. ^ <375:1894. 



CHAPTEE XXXII 

THE CONFEDERATION 

We have spoken (page 118) of New York as a 
sovereign state, with independent authority of 
its own, not delegated or subject to alteration 
by some authority above. But a single state, 
standing alone, would not have power to protect 
itself and its rights against encroachments. 
Hence it has formed a union with other states, 
and delegated certain of its powers to a national 
government. 

When independence was declared (see page 
591), the principle had become a famihar one, 
since some of the colonies had from time to time 
found it advisable to form unions for certain 
purposes. 

The United Colonies of New England was the 
name given to a union in 1643 of the 4 colonies 
of Massachusetts, Plymouth, Connecticut, and 
New Haven, formed on account of the disturbed 
condition of affairs in the mother country, and 
the troublesome character of their neighbors. 

It was a league of friendship, for offence and 
for defence, for mutual advice and help in pre- 
serving their religious privileges, and for mutual 
safety and welfare. No new members could be 

(324) 



EARLY UNIONS OF COLONIES 325 

admitted to the union, nor could any 2 of the 4 
unite without consent of the other 2. Within 
its own hmits each colony was independent. 

The 4 colonies had at this time 24, 000 men — 
Massachusetts 15,000; Connecticut and Ply- 
mouth each 3,000; New Haven 2,500. 

The confederacy was virtually dissolved in 
1665, when Connecticut obtained a charter giv- 
ing her jurisdiction over New Haven ; but it was 
renewed by the same colonies, which now num- 
bered only 3, Connecticut having absorbed New 
Haven, to manage King Philip's war; and it per- 
ished in 1684, when James H overthrew the 
popular governments of New England. 

The Albany convention (1754) was held by dele- 
gates from 7 of the colonies and adopted a plan 
of union for the protection of the American colo- 
nies against France. It was, however, rejected 
both by the colonies because it gave too much 
power to the Enghsh government, and by the 
English government because it gave too much 
power to the colonies. 

The stamp-act congress (1765) met in New York 
to consider the state of colonial affairs, and 
adopted a declaration of rights. Soon after the 
stamp-act was repealed, and the effect of the 
congress on the colonies was to prepare the way 
for closer union. 

These experiences had taught the colonies the 



326 THE CONFEDERATION 

advantages of union, and prepared them to unite 
in resisting the demands of Great Britain. The 
colonial legislatures denied all power of taxation 
except under laws passed by themselves ; parlia- 
ment by express declaration claimed that the 
king had full authority to make laws to bind the 
colonies in all cases whatsoever. Parliament 
forbade the importation of goods into the colonies 
except in British vessels, forbade the manufac- 
ture of iron and hats in the colonies, forbade the 
colonies to sell abroad or from one colony to an- 
other any wool or woolen goods, in 1733 put high 
duties upon sugar and other articles imported 
into the colonies from the West Indies, and for- 
bade the exportation of such American products 
as sugar, tobacco, and cotton to any but English 
ports. Finally it passed an act levying duties 
upon all tea, glass, paper, etc., imported into the 
colonies. 

The first continental congress (1T74), in which 
all the colonies except Georgia were represented 
by delgates, took a decided step toward independ- 
ence in publishing a second declaration of rights 
It was here that Patrick Henry exclaimed, 
' ^ British oppression has effaced the boundaries 
of the several colonies. The distinctions be- 
tween Virginians, Pennsylvanians, New York- 
ers, and New Englanders are no more. I 
am not a Virginian but an American." It will 



THE DECLARATION OF INDEPENDENCE 327 

be noted that the declaration of rights says: 
'■ ' To those grievous acts and measures Ameri- 
cans can not submit " (see page 329). 

The second continental congress assembled in 
Philadelphia in 1775, and continued in session 
till the close of the revolutionary war. It passed 
on July 4, 1776, the Declaration of independence 
(see page 591), in which for the firsb time the 
colonies were called the United States of America. 

The Declaration was written by Thomas Jef- 
ferson, and was passed by all the delegates ex- 
cept those from New York. These referred it 
to the people, by whom it was adopted July 9. 
The bell in the tower of the building where the 
congress met, since called Independence hall 
and still standing, was rung long and loud in 
honor of the signing, and is still exhibited as 
the Independence bell. 

The principal points of difference between the 
second Declaration of rights and the Declaration 
of independence are summarized as follows : 

Declaration of riglits 
1774 

1. Eights to life, lib 



erty, property. 



Declaration of independence 
1776 

Eights to life, Hberty, 
and pursuit of happi- 
ness. 

The king has cut off 
our trade with all parts 
of the world. 



328 



THE CONFEDERATION 



2. Ancestors entitled 
to all the rights of Eng- 
lishmen. 

3. Descendants have 
the same rights. 

4. Foundation of 
English hberty and of 
all free government the 
right of the people to 
participate in their leg- 
islative council; as col- 
onies are not represent- 
ed in parliament all 
taxes must be fixed by 
colonial legislatures. 

5. Eight to trial by 
J^iry. 



6. Eights under all 
applicable English 
statutes existing at 
time of colonization. 

7. Eights under our 
charters. 

8. Eight to assemble, 
discuss, dnd petition. 

9. Standing armies 



We have conjured 
them by the ties of our 
common kindred to dis- 
avow these usurpations. 

He has established 
absolute tyranny, re- 
fusing assent to neces- 
sary laws, summoning 
legislatures at uncom- 
fortable places, dissolv- 
ing them and refusing 
to allow others to be 
elected, imposing taxes 
without our consent. 

He has deprived us 
of it in many cases, 
and transported us over 
the seas for pretended 
offences. 



He has taken away 
and altered charters. 



He has kept them. 



THE DECLARATIONS OF 1774 AND OF 1776 329 



in colonies in time of 
peace illegal. 



10. Both houses of 
legislature must be 
-elected by people. 



To these acts Ameri- 



making the military 
superior to civil power, 
and quartering large 
bodies of troops upon 
us. 

He has combined 
with others to give us 
a jurisdiction foreign 
to our constitution, 
giving his assent to 
pretended legislation. 

He has discouraged 
immigration to the col- 
onies and obstructed 
naturalization ; 

He has refused assent 
to laws for establishing 
a judiciary, making 
judges dependent on his 
will alone ; 

He has erected a mul- 
titude of new offices ; 

He has abdicated 
government here by 
waging war against us, 
and made our captive 
fellow-citizens 
bear arms against us. 

Governments derive 



380 



THE CONFEDERATION 



cans can not submit, their just power from 

the consent of the gov- 
erned, and when a gov- 
ernment does not se- 
cure their rights to the 
governed it should be 
abohshed. 
We therefore resolve We therefore declare 
(1) to enter into agree- the united colonies to 
ment not to import, be free and independ- 
consume, or export ; (2) ent states, absolved 
to prepare an address from all allegiance to 
to the people ; and (3) the British crown, 
to prepare an address 
to the king. 

The adoption of the Declaration of independ- 
ence made necessary some plan of union among 
the states. A plan was proposed July 12, 1776, 
and after much debate articles of confederation 
(see page 595) were adopted by congress Nov. 15, 
1777, and by the last of the states March 1, 
1781. Meantime the states had been held to- 
gether only by their fears. Congress had no de- 
fined powers, but the state rehed upon the wis- 
dom and the patriotism of its members and 
acquiesced in its acts. ^ 

The articles of confederation proved wholly 
inadequate. Hamilton said of government under 

iBi.17. 



THE SHADOW OF A GOVERNMENT 831 

these articles, "It had power to declare any- 
thing and to do nothing." The states after 6 
years of union without it and 8 years under it 
found it was only the "shadow of a govern- 
ment without the substance ". 



CHAPTER XXXIII 

THE NATIONAL CONSTITUTION 

Difficulties of carrying on a central govern- 
ment under the articles of confederation in- 
creased until, on Feb. 21, 1787, following a report 
of a congress in 1786, in which only 5 states 
were represented, congress recommended the 
appointment of a convention to revise the articles 
of confederation so that they might be ' ' ade- 
quate to the exigencies of government and the 
preservation of the union". All the states ex- 
cept Ehode Island sent delegates, and the con- 
vention assembled May 14, 1787. 

That the confederation was not a nation was 
recognized in a resolution offered early in the 
session of the convention and carried against 
great opposition: ^^That a national government 
ought to be established, consisting of a supreme 
legislative, judiciary, and executive. ' ' The dele- 
gates, accordingly, instead of trying to amend 
the articles of confederation prepared a new 
national constitution (see page 118), and on Sept. 
17, 1787, reported it to congress, which sub- 
mitted it to the legislatures of the several states 
for adoption. Nine of the states, the required 

(332) 



MODELLED UPON THE STATE CONSTITUTIONS 333 

number, had ratified it by June 21, 1788. Vir- 
ginia followed June 26, New York July 26, 1788, 
North Carolina in 1789, and Ehode Island in 
1790. The first congress under the new consti- 
tution met March 4, 1789, and George Washing- 
ton took the oath of office as the first president 
on April 30, 1789. 

''Thus was achieved," says Judge Story, 
'' another and still more glorious victory in the 
cause of national liberty than even that which 
separated us from the mother country." 

The constitution was modelled upon that of 
the state constitutions, all of which had the 
written form, and most of which provided for 
legislative, judicial, and executive departments; 
for two legislative houses, the members chosen 
in different ways; for a chief executive; for a 
judiciary appointed by the executive and con- 
firmed by the upper house. ^ "It has been truly 
said that nearly every provision of the federal 
constitution that has worked weU is one bor- 
rowed from or suggested by some state constitu- 
tion; nearly every provision that has worked 
badly is one which the convention, for want of 
a precedent, was obliged to devise for itself." ^ 
' ' It is, therefore, so to speak, the complement 
and crown of the state constitutions, which 
must be read along with it and into it, in order 

1 B i. 27, 34. 2Bi.32. 



83+ THE NATIONAL CONSTITUTION 

to make it cover the whole field of civil govern- 
ment, as do the constitutions of such countries 
as France, Belgium, Italy." ^ 

" The constitution of the United States is a 
part of the constitution of each state, v^hether 
ref ierred to in it or not. " ^ 

Bryce says (i.364): " Probably no writing ex- 
cept the New Testament, the Koran, the Penta- 
teuch, and the Digest of the Emperor Justinian, 
has employed so much ingenuity and labor as 
the American constitution, in sifting, weighing, 
comparing, illustrating, twisting, and torturing 
its text. " ^ ' ' It was and remains what its 
authors styled it, eminently an instrument of 
compromises ; it is perhaps the most successful 
instance in history of what a judicious spirit of 
compromise may effect." ^ '^ Yet, after all de- 
ductions, it ranks above every other written con- 
stitution for the intrinsic excellence of its 
scheme, its adaptation to the circumstances of 
the people, the simpHcity, brevity, and precision 
of its language, its judicious mixture of definite- 
ness in principle with elasticity in details." ^ 

'' The constitution of England is contained in 
hundreds of volumes of statutes and reported 
cases ; the constitution of the United States (in- 

iBi.29. 2Bi3g8. ^g i.25, 305; ii.l7. *Bi.32. » B i.25. 



ITS BENEFITS 335 

eluding the amendments) may be read through 
aloud in 23 minutes. "^ 

^' The rigid constitution of the United States 
has rendered, and renders now, inestimable ser- 
vices. It opposes obstacles to rash and hasty 
change. It secures time for deliberation. It 
forces the people to think seriously before they 
alter it or pardon a transgression of it. It makes 
legislatures and statesmen slow to overpass their 
legal powers, slow even to propose measures 
which the constitution seems to disapprove. It 
tends to render the inevitable process of modifi- 
cation gradual and tentative, the result of ad- 
mitted and growing necessities rather than of 
restless impatience. It altogether prevents some 
changes which a temporary majority may clamor 
for, but which will have ceased to be demanded 
before the barriers interposed by the constitution 
have been overcome. 

'^ It does stiU more than this. It forms the 
mind and temper of the people. It trains them 
to habits of legality. It strengthens their con- 
servative instincts, their sense of the value of 
stability and permanence in political arrange- 
ments. It makes them feel that to comprehend 
their supreme instrument of government is a 
personal duty, incumbent on each one of them. 
It familiarizes them with, it attaches them by 

iBi.363. 



336 THE NATIONAL CONSTlTUTlOJT 

ties of pride and reverence to, those fundamental 
truths on which the constitution is based. "^ 

" The contests in the convention of 1787 over 
the framing of the constitution, and in the 
country over its adoption, turned upon two 
points: the extent to which the several states 
should be recognized as independent and separate 
factors in the construction of the national gov- 
ernment, and the quantity and nature of the 
powers which should be withdrawn from the 
states to be vested in that government. " ^ 
'' The salient feature of the constitution is the 
effort it makes to establish an equipoise between 
the force which would carry the planet states off 
into space and the force which would draw them 
into the sun of the national government. " ^ 

The happy solution of the difficulty was the 
formation of a government with limited dele- 
gated powers, expressly reserving to the states 
all powers not delegated. '' So much is left to the 
states, that Jefferson once said the federal gov- 
ernment was only the American department of 
foreign affairs ;4 yet even in Jefferson's own state 
it is the nation and not the state that is present 
to the imagination of the citizen as sovereign. ' ' ^ 

The national government is vested with abso- 
lute power over certain specified subjects, and 
the states have equally absolute power over aU 

iBi.396. 2Bi.305. ^ b ii.l7. * B i.413. = b i.394. 



NATION WORKS THROUGH ITS OWN OFFICIALS B37 

the rest. Bryce says (i.l2) : ^'America is a com- 
monwealth of commonwealths, a repubhc of 
republics, a state which, while one, is neverthe- 
less composed of other states even more essential 
to its existence than it is to theirs. ' ' See page 
118. 

It must be noted that while the state uses the 
official machinery of the county and the town, 
the United States never works through state or 
local officers. It executes all its orders through 
national officials ; and, on the other hand, in most 
states federal officials are disqualified from hold- 
ing state offices or election to the legislature 
(148).^ 

'' It is a further consequence of this principle 
that the national government has but httle to do 
with the states as states. Its relations are with 
their citizens, who are also its citizens, rather 
than with them as ruling commonwealths. In 
the following points, however, the constitution 
does require certain services of the states : 

'^ It requires (3, 8) each state government to 
direct the choice of, and accredit to the seat of 
the national government, two senators and so 
many representatives as the state is entitled to 
send. 

' ' It requires (54, 95) similarly that presidential 
electors be chosen, meet, and vote in the states, 

iBi.323, 443. 




338 THE RATIONAL CONSTITUTION 

and that their votes be transmitted to the 
national capital. 

'' It requires (41, 61, 85) each state to organize 
and arm its militia, which, when duly sum 
moned for active service, are placed under the 
command of the service (see page 194). 

'' It requires each state to maintain a repuhU- 
can form of government " (78). ^ 

The United States is. In the constitution aK 
the references to the United States show that 
the makers commonly used the word as plural 
(50, 67, 70) ; and many writers, like Bryce, ^ fol- 
low that usage. Of recent years, however, in 
most of the presidents' messages, the decisions of 
the supreme court, and the treaties with foreign 
countries, the word is followed by a singular 
verb. It is to-day the best usage to say the 
United States is a nation (see page 182). 

The source of authority of the constitution is 
the people. The articles of confederation were 
^'between the states ", and were ratified by the 
legislatures (see page 350). The constitution 
begins: ''We, the people of the United States 
* '^" "^ do ordain and establish this constitu- 
tion," and was ratified by conventions directly 
elected by the people. ^ 

The point is sometimes made that the states 
were never sovereign states — that they were 

1 B. 312. 2 ii,3oi. 3 Bancroft, ii.208. 



SOURCE AND PURPOSE 339 

colonies till July 4, 1776, and then became united 
into a nation. In this view the states could not 
yield part of their sovereign powers to form the 
national constitution, because they never pos- 
sessed those powers, the continental congress 
exercising the powers of national sovereignty till 
the constitution went into operation. But as has 
been already said (page 330), the continental con- 
gress was tacitly allowed to exercise powers it 
did not really possess. ^ 

The purpose of the constitution is stated in 
what is called the preamble, though it is more 
properly the enacting clause : 

'' We the people of the United States, 

(1) in order to form a more perfect union, 

(2) establish justice, 

(3) insure domestic tranquillity, 

(4) provide for the common defence, 

(5) promote the general welfare, and 

(6) secure the blessings of liberty to ourselves 
and our posterity, do ordain and establish this 
constitution for the United States of America 

(I)-" 

Amendments may be proposed either (1) by 
congress, or (2) by a convention called by con- 
gress at the request of f of the state legislatures. 
They may be ratified either (3) by the legisla- 



^ Duer, page 345. 



840 THE NATIONAL CONSTITUTION 

tures or (4) by conventions in | of the states 
(79). 

All the 19 amendments that have been pro- 
posed since the adoption have been proposed by 
mode (1), and the 15 that have been ratified have 
been ratified by mode (3). When New Jersey 
and Ohio sought to withdraw their ratification 
of the nth amendment (99-103), congress by its 
action declared its opinion that a state cannot 
withdraw the ratification once given. 

The only limitation upon the power of amend- 
ment is that no state without its consent shall 
be deprived of equal suffrage in the senate (79). ^ 

The first 10 amendments were ratified in 
1791, and comprise practically the bill of rights ^ 
which form a feature of all the state constitu- 
tions (see page 136). The others are mentioned 
topically. It will be observed that they are all 
restrictions upon the departments of national 
government, and not upon the states. 

Yet Bryce feels sure the national government 
is overshadowing the state governments (see 
page 353), and that congress is becoming supreme 
in the national government. He says : 

' ' Men come and go, but the assembly goes on 
forever ; it is immortal, because while the mem- 
bers change, the policy, the passion for extend- 
ing its authority, the tenacity in clinging to 

1 B i.356. 2 B i.24. 



AMENDMENTS 341 

what has once been gained, remain persistent. 
•3f * * * * * Thus congress, though it is 
no more respected or loved by the people now 
than it was seventy years ago, though it has de- 
veloped no higher capacity for promoting the 
best interests of the state, has succeeded in oc- 
cupying nearly all the ground which the constitu- 
tion left debatable between the president and 
itself ; and would, did it possess a better internal 
organization, be even more plainly than it now 
is the supreme power. in the government."^ 

Amendments to the National Constitution 

year ofadop~ 
tion subjects amendments 

1791, personal rights, relig- 
ious liberty I (84), 145 

1791, free speech I (84), 144 

1791, to bear arms II (85), 194 

1791, private houses Ill (86), 151 / 

1791, search warrants IV (8 7), 138 

1791, criikinal proceedings. . V, VI, VIII (89, 91), 141 

1791, trial by jury VII (90), 141 

1791, rights of the people. . IX (92), 338, 353 
1791, powers of the state. . . X, [93), 353 
1798, power of national judi- 
ciary XI (94), 275 

1804, election of president. . . XII (95), 363 

1865, 68, 70, slavery and civil rights, XIII,XIV, XV (98-1 05),495 

1868, apportionment XIV (100), 445 

1868, political disabilities. . . . XIV ( 1 1), 547 

1868, debts of the civil war, XIV (102), 413 

JBii.233, 



CHAPTEE XXXIV 

RELATION OF THE NATION TO THE STATES 

What are the powers which the states dele- 
gated to the nation ? 

Exclusive national powers are granted to:i 

make the supreme law of the land (81, 34 ; see 
page 286); 

declare war (36 ; see page 398) ; 

require oath to support .the national constitu- 
tion from all members of state legislatures and 
state executive and judicial officers (82 ; page 395). 

make treaties (51 ; see page 474:); 

regulate commerce (28; see page 418); 

establish rules of naturaUzation (29 ; see page 
155); 

coin money (51), and punish counterfeiting 
(31 ; see page 407); 

fix the standards of weights and jneasures (30 ; 
see page 406) ; 

emit bills of credit (51 ; see page 413); 

make bankruptcy laws (29 ; see page 524) ; 

make anything but gold and silver legal tender 
(51 ; see page 408); 

grant patents and copyrights r33 ; see pages 
423, 424); 

^ B i.808. 

(343) 



EXCLUSIVE NATIONAL AND STATE POWERS 343 

establish post-offices (32 ; see page 401) ; 

establish post-roads (32 ; see page 403) ; 

exact duties, imposts, or tonnage (52^ 26 ; see 
pages 296, 348); 

keep troops or ships of war in time of peace 
(37, 38, 52; seepage 39T); 

grant letters of marque and reprisal (51 ; see 
page 399); 

declare and make rules for war (52 ; see page 
398); 

have jurisdiction over the District of Columbia 
and all lands occupied for national purposes (42 ; 
see page 360). 

Every power alleged to be vested in the national 
government must be afifirmitavely shown to have 
been granted; but when once the grant of a 
power by the people to the national government 
has been established, the power will be con- 
strued broadly (see page 441). ^ 

Exclusive state powers were reserved to : 

manage elections (15 ; seepage 164); 

manage the militia (41), as to appointment of 
officers and training. The discipline however 
must be that established by congress (61), that 
when placed side by side in a national army they 
may be uniformly trained (see page 196). 

The courts have uniformly ruled that the 



B i.368, 369. 



3^4: RELATION OF THE NATION TO THE STATES 

states have powers not by favor of congress but 
by the terms of the constitution. 

Co-ordinate powers are granted to the nation 
with the states to: 

levy taxes (26 ; (see page 292) ; 

borrow money (27 ; see page 302). 

Forbidden powers to both state and nation are 
to: 

grant titles of nobility (50, 51); 

Hamilton says:i '' This may truly be denomi- 
nated the corner-stone of republican government ; 
for so long as titles of nobility are excluded there 
can never be serious danger that the government 
will be any other than that of the people. ' ' 

take private property without just compensa- 
tion (88 ; see page 151); 

pass bills of attainder (46, 51 ; see page 140); 

pass ex post facto laws (46, 51 ; see page 139). 

Forbidden national powers are to : 

abridge freedom of speech (84 ; see page 144) ; 
freedom of the press (84; see page 45); 
right of assembly and petition (see page 145) ; 

make unreasonable searches or seizures (87; 
see page 137); 

require religious test for office (82; see page 
145); 

make laws establishing rehgion, or prohibiting 
free exercise thereof (84 ; see page 145) ; 

1 Federalist, No. 84, 



FORBIDDEN NATIONAL AND STATE POWERS 345 

hold for criminal trial except on indictment 
(88 ; see page 82) ; 

or twice for the same offence (88 ; see page 
142); 

imprison a man without informing him of the 
charge (89; see page 137); 

compel a witness to testify against himself (88 ; 
compare page 142) ; 

deprive a person of life and liberty except by 
process of law (88; see page 137); 

delay trial in criminal prosecutions (89; see 
page 268) ; 

fail to confront the prisoner with the opposing 
witnesses (89 ; see page 142) ; 

fail to provide the prisoner with witnesses and 
counsel (89 ; see page 141) ; 

do away with trial by jury (69, 90; see page 
141); 

require excessive bail or fines (91 ; see page 

141); 

inflict cruel or unusual punishments (91 ; see 
page 143); 

permit slavery or involuntary servitude (98; 
see page 355); 

draw money from the treasury except through 
legal appropriations (49; compare page 234); 

The congressional acts making appropriations 
for the year ending June 30, 1901, fill more than 
230 pages. 



3i0 RELATION OF THE NATION TO THE STATES 

suspend the writ of habeas corpus except when 
required in cases of rebeUion or invasion (45 ; see 
page 139); 

appropriate money to support armies for a 
longer term than 2 years (37), thus giving the peo- 
ple opportunity to elect a new house (page 445); 

quarter soldiers in private houses (86 ; see page 
151); 

punish treason by corruption of blood, or for- 
feiture except during the life of the traitor (71; 
see page 140) ; 

lay any captation or other direct tax except in 
proportion to the census (47; see page 298); 

permit its officers except by consent of con- 
gress to receive from any foreign state any 
present, emolument, office, or title (50; seep. 395); 

place duties upon exports from a state (48 ; see 
page 296); 

There was strong opposition to this in the con- 
vention. Great Britian in 1901 placed an export 
tax on coal. 

give preference to the ports of any one state 
over those of another (48; see page 418); 

require vessels in going from one state to an- 
other to enter, clear, or pay duties (48 ; see p. 419). 

Under Great Britain an American ship for a 
European port must clear from some British port. 
Now a vessel can go from any American to any 
English port. 



FORBIDDEN NATIONAL AND STATE POWERS 347 

Forbidden state powers are to : 

absolutely forbidden 

establish any other than a repubhcan form 

of government (78 ; see page 481); 
abridge the privileges or immunities of 

citizens (99; see page 136); 
deny or abridge the right to vote on ac- 
count of color (104; see page 157); 
deprive any person of life, liberty, or 
property without due process of law 
(99; see page 141); 
pass laws impairing obligation of contract 

(51; .see page 523); 
deny any person equal protection of the 

laws (99; see page 137); 
emit bills of credit (51 ; see page 514). 
These are evidences of indebtedness that may 
be used as money. 

A state may borrow money and issue bonds ; 
but when Missouri issued loan certificates which 
were made receivable for taxes and debts the 
supreme court decided that they were bills of 
credit and unconstitutional. During the revolu- 
tionary war bills of credit to the amount of 350 
millions of dollars were issued by the states, 
which depreciated till they became worthless. 
forbidden except tuith consent of congress 
enter into treaty, alliance, or federation (51, 
52 ; see page 474) ; 



348 RELATION OF THE NATION TO THE STATES 

lay imposts or duties except as necessary 
for executing its inspection laws (52) ; 
The exercise of this power by the states was 
one of the chief causes of the overthrow of the 
articles of confederation. A state may make 
charges for the inspection of flour, milk, but- 
ter, etc., to ascertain their quahty and quantity, 
but only for this purpose (see page 418). 

lay any duty of tomiage, a tax on ships in 
proportion to their cubical contents (52; 
see page 343); 
keep troops or ships of war in time of peace 

(52; see page 397); 
engage in war unless actually invaded (52 ; 
see page 469). 
' ' Note that this list contains no prohibition to 
a state to do any of the following things : estab- 
lish a particular form of religion ; endow a par- 
ticular form of rehgion, or educational or chari- 
table establishments connected therewith ; abolish 
trial by jury in criminal or civil cases ; suppress 
the freedom of speaking, writing, and meeting 
(provided that this be done equally as between 
different classes of citizens, and provided also 
that it be not done to such an extent as to 
amount to a deprivation of liberty without due 
process of law) ; limit the electoral franchise to 
any extent; extend the electoral franchise to 
women, minors, aliens. "^ 

1 B i.310. 



GUARANTEES TO THE STATES 349 

Guarantees to each state : 

2 senators (79; see page 453); 

at least 1 representative (5 ; see page 445) ; 

a republican form of government (78; see 

page 481); 
religious freedom (82 ; see page 145). 
the right to bear arms (84; see page 194); 
protection against invasion (78; see page 

197); 
protection against domestic violence (78) on 
application of the legislature, or of the 
governor if the legislature can not be con- 
vened (see page 198). 
In the railway strike of 1894 rioting occurred 
in railway yards in Chicago. Though Gov. Alt- 
geld did not apply for national interference and 
protested against it, President Cleveland ordered 
Gen. Miles to use his troops to preserve order, 
on the ground that it was his duty to protect the 
national mails and interstate commerce (see 
pages 198, 404). i 

to citizens in each state all the privileges 
and immunities of citizens in the several 
states (73; see page 493) ; 
extradition of criminals (74; see page 554); 
full faith in each state to the acts, records, 
and judicial proceedings of every other 
state (72; see page 269); 

1 i.323, 548. 



350 RELATION OF THE NATION TO THE STATES 



that no preference shall be given bj regula- 
tion to the ports of one state over those, 
of another (48; see page 418); 
that no new state shall be formed within its 
jurisdiction (76; see page 358). 
In 1861 the western counties of the state of 
Virginia met in convention, deposed the state 
officers who had led the state to secede, and 
formed a constitution for West Virginia, which 
was admitted in 1863. Admission to the con- 
federation was refused in 1777 to Vermont, since 
both New York and New Hampshire claimed it 
to be within their jurisdiction. 



Articles of confederation 

made a league of 
friendship ; 

adopted by legisla- 
tures ; 

no executive depart- 
ment; 

no national courts ; 

1 house of congress; 

vote in congress by 
states ; 

salary of members 
paid by states ; 

could deal only with 
states ; 



National constitution 

made a nation ; 

adopted by the 
people ; 

president and cabi- 
net; 

supreme and inferior 
courts ; 

2 houses of congress ; 

vote by individuals ; 

salary paid by nation; 



I deals directly 
I individuals; 



with 



CONSTITUTION VS. ARTICLES OF CONFEDERATION 351 



could not enforce 
laws if states objected ; 

could not regulate 
commerce; 

could collect taxes 
only by calling on 
states ; 

could not settle dis- 
putes between states; 

could not enforce uni- 
formity of law; 

could not protect 
state from invasion ; 

could not use force 
against a state in rebel- 
lion; 

could coin money, but 
had no power to buy 
bullion ; 

had no real power at 
home or abroad ; 

was a government in 
name only, defied at 
home and despised 
abroad. 



can enforce laws 
with entire army and 
navy; 

ample power to do 
this; 

collects taxes by its 
own authority; 

ample power to set- 
tle disputes ; 

ample power to do 
this; 

ample power to do 
this; 

can use entire power 
of government to put 
down rebellion ; 

has ample power to 
buy bullion; 

can enforce its laws 
at home and protect its 
citizens abroad ; 

is a government loved 
and obeyed at home, 
and respected and hon- 
ored abroad. 



'' A state is, within its proper sphere, just as 
legally supreme, just as well entitled to give 



352 RELATION OF THE NATION TO THE STATES 

effect to its own will, as is the national govern- 
ment within its sphere ; and for the same reason. 
All authority flows from the people. The people 
have given part of their supreme authority to 
the central, part to the state governments. Both 
hold by the same title, and therefore the national 
government, although superior wherever there 
is a concurrence of powers, has no more right to 
trespass on the domain of a state than a state 
has upon the domain of federal action. ' ' ^ See 
page 118, and compare page 192. 

To prevent any misconception the 10th amend- 
ment (93) declares that the powers not delegated 
to the United States by the constitution, nor 
prohibited by it to the states, are reserved to the 
states respectively, or to the people. 

In the articles of confederation this read '' not 
expressly delegated" (see page 595), but in the 
convention it was objected to this word that it 
was impossible to confine a government to the 
exercise of express powers; the constitution 
could not specify every detail, and much must be 
implied. There have even been times, as during 
the civil war, when trie safety of the country 
required that the written constitution should be 
evaded or over-ridden ; when men said they would 
break the constitution in order to save it. - 

It is Bryce's opinion that the result of the 

iBi.314. 2Bi.388. 



THE NATION GAINING IN INFLUENCE 353 

compromises thus embodied in the constitution 
is the gradual lessening of the influence of the 
state. ^' Although the states have grown enor- 
mously in wealth and population, they have de- 
chned relatively to the central government. The 
excellence of state laws and the merits of a state 
administration make less difference to the in- 
habitants than formerly, because the hand of the 
national government is more frequently felt. 
The questions which the state deals with, largely 
as they influence the welfare of the citizens, do 
not touch his imagination like those which con- 
gress handles, because the latter determine the 
relations of the repubhc to the rest of the world, 
and affect all tho area that lies between the two 
oceans. The state set out as an isolated and 
self -sufficing commonwealth. It is now merely 
a part of a far grander whole, which seems to 
be slowly absorbing its functions and stunting its 
growth, as the great tree stunts the shrubs over 
which its spreading boughs have begun to cast 
their shade. * * * 

^^ The truth is that the state has shriveUed up. 
It retains its old legal powers over the citizens, 
its old legal rights as against the central govern- 
ment. But it does not interest its citizens as it 
once did. And as the central government over- 
shadows it in one direction, so the great cities 
have encroached upon it in another. The popu- 



354 RELATION OF THE NATION TO THE STATES 

lation of a single city is sometimes a fourth or a 
fifth part of the whole population of the state ; 
and as city questions interest this population more 
than state questions do, city officials have begun 
to rival or even to dwarf state officials. "^ 



B i.537, 586, 344. 



CHAPTEE XXXV 

TERRITORIES AND NEW STATES 

Not all the territory that belonged to the nation 
they formed was included in the original 13 
states, and even before the constitution was 
adopted provision was made for the government 
of the region northwest of the Ohio river by the 
ordinance of 1787 (see page 604). Of this Daniel 
Webster declared ^ that he doubted whether any 
one law of any lawgiver, ancient or modern, 
had produced effects of more distinct, marked, 
and lasting character; and Senator Hoar^ that it 
belongs with the Declaration of independence 
and the national constitution as one of the three 
title-deeds of American liberty. 

It will be noted that it includes some of the 
most important provisions of the bill of rights 
(se3 pages 608, 610), being the first American 
document to recognize rehgious freedom (see page 
608), and to provide for the security of property 
(see page 604); it anticipated the constitution 
more than three-quarters of a century in forbid- 
ding slavery (see page 610) ; and it made the first 
declaration after the revolution that education 
was the duty of government (see page 609). 

. 1 Works, iii.263. ^ Oration at Marietta centennial, 

(355) 



356 TERRITORIES AND NEW STATES 

The national constitution provided (77) that 
congress should have power to make the needful 
rules and regulations concerning all this terri- 
tory, as to which there were at that time con- 
flicting claims, and whatever might be after- 
wards acquired. Florida was bought from Spain, 
the Louisiana purchase from Napoleon, Alaska 
from Eussia, Texas and California Avere ceded 
by Mexican treat}^, the entire territory thus 
acquired measuring nearly 2 bilhon acres, and 
costing 322 milhons. 

Hawaii was annexed and Porto Eico and the 
Phihppines were secured by Spanish treaty. 
These last acquisitions, with a protectorate over 
Cuba, have led to new problems, many of which 
are still unsettled, as shown by the closely di- 
vided decision of the supreme court in 1901 as to 
duties in Porto Eico. But the. national terri- 
tories on the North American continent are still 
governed on the general principles estabhshed 
by the ordinance of 1787. 

The government has always encouraged devel- 
opment by allowing settlers who occupy public 
lands to purchase at a reduced price, which is 
called pre-emption (from Latin pre and emere, to 
buy). The homestead law gives outright farms of 
160 acres to actual settlers, who are citizens or 
have filed intention of becoming so (see page 156), 
21 years of age, who for 5 years have no other 



GROWTH OF TERRITORY 357 

home, and who cultivate the land and make im- 
provements that show good faith . The farm may 
be selected at will from unappropriated and un- 
improved lands, and the right dates from when he 
begins to make improvements. He must make 
entry at a United States land office (see page 422) 
within 3 months, proving that he is a citizen and 
age, and paying a small fee, and he receives a of 
receipt describing the land, and conferring incep- 
tive right. He must begin his residence there 
within 6 months, and continue residence and 
cultivation 5 years (if a soldier of the civil war, 
1 year), after which he receives, his patent, and 
the land is fully his. If he wishes to remain less 
than 5 years, he may pay for the land at $1.25 
an acre, or if it is within the limits of a railway 
land grant, at |2.50 an acre. 

The timber culture act j)rovides that public 
lands naturally devoid of by timber may be ac- 
quired by planting trees thereon and keeping the 
same in a healthy growing condition for 8 years. 
The applicant must be as before an adult citizen 
(see page 155), the head of a family, and must 
not enter claim for more than 160 acres. 

In 1854 swamp land grants were established 
under similar conditions, allowing the settler not 
more than 640 acres at 11.00 an acre, of land 
that he has irrigated for 3 years, and which 



358 TERRITORIES AND NEW STATES 

would not without irrigation produce some agri- 
cultural crop. 

The most important cessions of land have been 
by railroad grants, which have covered more 
than 37 million acres. 

To develop mining tracts, an adult citizen may 
claim and hold not more than 1,500 feet along 
the course of any mineral vein. Labor or im- 
provements to the value of $100 must be ex- 
pended every year thereafter, or the claim be- 
comes subject to reclamation. Enormous for- 
tunes have come from lands secured in this way. 

By these provisions the government has popu- 
lated its vast territory with remarkable rapidity, 
and developed what is in itself a great country. 

The people of a territory (from Latin terra^ 
the earth), have no powers of government ex- 
cept those granted by congress. A territory has 
not, like the states, a constitution, but is gov- 
erned entirely by United States statutes. ^ The 
inhabitants have passive citizenship; they are 
protected by the government. But they are 
not actively citizens, ^ they do not govern them- 
selves, they have no voice in the election of gov- 
ernor or congress or president. When congress 
chooses to establish a territorial government the 
people elect a territorial legislature, and a dele- 
gate to speak for them in congress, though with- 

iBi.553. M.555. 



GOVERNMENT OF TERRITORIES 359 

out vote. But the governor and the judges are 
still appointed by the president, and the entire 
territorial authority gets its sanction not from 
the people but from congress. 

In a sense this gives taxation without repre- 
sentation ; but the territory is looked upon as a 
state in process of formation, to come into its 
full rights when it is large enough and mature 
enough for them. ^ 

The territory can come into the union as a 
state only by consent of congress (76). Upon 
petition congress may pass an enabhng act au- 
thorizing the adoption of a constitution. If such 
a constitution is adopted and approved by con- 
gress, the state is admitted into the union. ^ 

The table on page 561 gives the date of admis- 
sion of each state, with facts as to origin, popu- 
lation, etc. There can be no doubt that some 
states have been allowed admission before they 
were entitled, to it, through the wish of the 
dominant party in congress to secure additional 
senators likely to be of their party. Nevada, 
for instance, has a population of only 42,335, and 
yet it has the same representation in the national 
senate as New York with its 7 millions. Of its 
71 million acres only J^ is under cultivation, 
and 95 ^ is still owned by the national govern- 
ment, because not deemed by settlers worth 

iBi.554, 556. 231.556, 



Mi) TERRITORIES AND NEW STATES 

taking up. Of the less than 4 million acres oc- 
cupied more than a million are owned by a dozen 
men. Hence it has been charged that the sen- 
atorships were matters of bargain and sale, the 
market-price ranging from $80,000 to $100,000. 

Can a state that once entered the union with- 
draw ? That was what South Carolina thought 
in 1832 (see page 297); but Andrew Jackson 
thought differently and his view prevailed. The 
southern states fought the civil war to prove 
that they had the right to secede, and the ver- 
dict was against them. They ceased to become 
states, and had to be readmitted. 

The District of Columbia is unique in that the 
people have no elective franchise, and do not 
look forward to it. 

Congress has exclusive control (42) ; and in 
1878 established a board of 3 commissioners 
appointed for 3 years by the president, to have 
general charge of municipal affairs, appointing 
poUce, firemen, teachers, etc. They present an 
annual financial report to the secretary of the 
treasury. If approved by him and by congress, 
half the money is raised by tax upon the district, 
and the other half is appropriated from the gen- 
eral treasury. 

The supreme court of the district consists of a 
chief justice and 5 associates, appointed for life 
by the president, with confirmation by the 



GOVERNMENT OF TERRITORIES 361 

senate (see page 282). The laws are made di- 
rectly by congress. 

On account of the insult heaped upon it in 
Philadelphia, the continental congress was 
obliged to adjourn to Princeton. So it was de- 
termined to place the seat of government in ter- 
ritory under exclusive control of congress. 

Congress has control over all national prop- 
erty, such as forts; and may fix the place of 
trial for crimes not committed in any state (69 ; 
see page 553). 

The decisions of the supreme court in 1901 as 
to Porto Eico and the Philippines establish that 
the constitution does not follow the flag; that 
is to say, that the inhabitants of countries which 
come under control of the United States do not 
become entitled to the privileges of American 
citizens except by specific enactment of congress. 

They also establish that there is a distinct 
difference between territory ''a part of" and 
territory '' belonging to" the United States. 
Congress can legislate for all outlying territory 
as it sees fit. It can impose duties on articles 
imported from such territory to the United States, 
or on articles imported into such territory from 
the United States, without regard for the pro- 
vision that all duties shall be uniform through- 
out the United States (26; see page 296). 



CHAPTEK XXXYI 

THE PRESIDENT 

All the other officers provided for by the 
national constitution were already familiar in- 
stitutions, that had been evolved from long 
struggles for liberty. The presidency was a 
creation. Bryce says (i.62, 69): 

' ' In no European country is there any person- 
age to whom the president can be said to corre- 
spond. It we look at parliamentary countries like 
England, Italy, Belgium, he resembles neither 
the sovereign nor the prime minister, for the 
former is not a party chief at all, and the latter 
is palpably and confessedly nothing else. The 
president enjoys more authority, if less dignity, 
than a European king. He has powers for the 
moment narrower than a European prime min- 
ister, but these powers are more secure, for they 
do not depend on the pleasure of a parliamentary 
majority, but run on to the end of his term. 
One naturally compares him with the French 
president, but the latter has a prime minister and 
cabinet, dependent on the chamber, at once to 
relieve and to eclipse him ; in America the presi- 
dent's cabinet is a part of himself and has noth- 

(362) 



A UNIQUE OFFICE 363 

ing to do with congress. The president of the 
Swiss confederation is merely the chairman for 
a year of the administrative federal council 
(Bundesrath), and can hardly be called the execu- 
tive chief of the nation. ' ' 

The first question that came before the conven- 
tion was whether the executive power should be 
vested in a single person or in a board or com- 
mittee. It was the wise decision, ^ that to secure 
promptness, and energy and responsibility it was 
better to put one person at the head (53). The 
confederation had put at the head a committee 
of 13. Switzerland now has an executive com- 
mittee of 7. 

Then came the question as to his term of office. 
It must be long enough to give him a chance to 
formulate a policy and carry it out, but not so 
long as to make him feel independent of the 
people. It ^was finally fixed at 4 years (53), half 
way between the 2 years of the house of repre- 
sentatives and the 6 years of the senate. 

There was also the question whether he should 
be eligible for re-election, but no restriction on 
that point was made. Of the 13 presidents re- 
nominated 8 were re-elected, and a 9th, Cleve- 
land, was elected again after an interval. 

Finally came the question of the manner of 
election. Nothing cost the framers of the con- 

1 Federalist, No. 72. 



,^64 THE PRESIDENT^ 

stitution more time and trouble, nothing seemed 
to them better worked out, and nothing has 
more completely failed to realize their expecta- 
tions. They feared the haste and excitement of 
a popular vote ; they feared to entrust to congress 
the election of the officer who was to hold con- 
gress in check. ^ 

The electoral college was expected to solve the 
difficulty. It was intermediate between the 
voters and the election. The voters were to 
choose men to whom they were willing to en- 
trust the election of president, and these men 
were to elect him (54). But the expedient has 
proved only a piece of unnecessary machinery. 
In no single instance has a presidential elector 
voted for any other candidate than those he was 
expected to vote for when elected. The people 
might as well have voted for president direct. 
For an elector to use independent judgment 
would be considered a fraud on his constituents. ^ 

There is however one possibihty, the death 
between November and January of one or more 
of the candidates. This happened in the case of 
Horace Greeley. He had not received a majority, 
and his electors divided the votes among 4 candi- 
dates. There is also a danger. A minority of 
voters may elect a president. A few of the smaller 
states added to New York, and Ohio would give 

' B i.291. 2 Story, §1,463. 



THE ELECTORAL COLLEGE ' 365 

a majority in the electoral college, which makes 
it worth a good deal of effort to carry nearly 
balanced states. 

In 1876 South Carohna, Florida, Louisiana, 
and Oregon sent a double set of returns, one set 
in favor of Tilden and one set in favor of Hayes. 
The election would be determined by which sets 
were accepted. The senate was repubhcan and 
the house democratic. To deal with the matter 
a law was passed that no vote of a state should 
be rejected except by concurrent action of the 
two houses ; and that all duplicate returns should 
be referred to a commission of 15, made up of 5 
senators, 5 representatives, and 5 justices of the 
supreme court. The republican returns were 
accepted by a vote of 8 to T, and Hayes was 
allowed 185 electoral votes, to 184 for Tilden. 

In 1887 a law was passed providing that state 
decisions of ^11 contests as to electors should be 
final, but prescribing action in case double re- 
turns were presented. 

The electors are appointed by each state as the 
legislature may direct (54), but every state now 
puts electors upon the general ticket at the 
November election. There is no other qualifica- 
tion for an elector except that he does not hold 
office of trust or profit under the United States 
(54). 

The number of electors from each state is that 




J^66 THE PRESIDENT 

of the combined number of senators and repre- 
sentatives (see page 561). 

Congress names the time of choosing the elec- 
tors (56), and has fixed on the Tuesday next after 
the first Monday in November of the years 
divisible by 4. The electors vote for president 
in their respective states (95) usually at the 
capitols, on the 2d Monday in January following. 

Certified Usts are sent to Washington and on 
the 2d Wednesday of February are opened by 
the president of the senate in the presence of 
both houses of congress (95). 

Originally the electors voted only for president, 
each casting 2 votes; the person having the 
greatest number of votes for president v^as, if 
this made a majority, made president, and the 
person having the next greatest number of votes 
for president was made vice-president (55). 
Thus in 1796 Adams and Jefferson, belonging to 
different political parties, were made president and 
vice-president. The electors now vote (95) both 
for president and for vice-president, and those hav- 
ing a majority of votes for each office are elected. 

It is provided (95) that the elector may not 
vote for both president and vice president from 
his own state ; though this does not forbid the elec- 
tion of both from one state, it makes it inexpe- 
dient for a party to nominate candidates for both 
from one state, and it is never done. 



METHOD OF ELECTION 367 

If no person has a majority for the presidency 
the house of representatives immediately elects 
a president from the 3 candidates having the 
highest number of votes, the members from 
each state having one vote, and a majority of 
states being necessary to choice (95). Should 
the house fail to elect by March 4 following, the 
vice-president acts as president. 

This has happened twice, in 1801 and in 1825. 
In 1801 both Jefferson and Burr had an equal 
number of votes, and a majority (as could hap- 
pen, since each elector cast 2 votes for the same 
office). The protracted contest led to the 12th 
amendment (95). 

In like manner if no person has a majority 
for the vice- presidency, the senate elects a vice- 
president from the two having the most votes, 
in this case voting individually, and a majority 
necessary for choice (96). ' 

This happened in 1836, when Johnson received 
147 votes out of 291. He was elected by the 
senate. 

So far from taking the election of president out 
of politics, as was expected, the electoral college 
has left the presidency the principal aim and 
reward of political maneuvre. ^ The growth of 
the caucus from the early nominations for presi- 
dent has already been noted (see page 176). In the 

1 B ii.172-183, 214-216. 



368 THE PRESIDENT 

nomination of a president the full caucus machin- 
ery is employed. The town caucus elects dele- 
gates to the county or assembly district conven- 
tion; this elects delegates to the state convention; 
and this elects delegates to the national conyen- 
tioii, which is called by the national committee 
named at the last national convention. 

Bryce asks why these conventions should be 
so pre-eminently tempestuous, considering that 
they are not casual concourses, but consist of 
persons duly elected, and are governed by a regu- 
lar code of procedure ; and replies that in them 
are united the two conditions which generate 
excitement, viz., very large numbers and impor- 
tant issues to be determined. In no other mod- 
ern assemblies do these conditions concur. ^ 

The number of delegates allowed each state is 
twice as mauy as it has electoral votes (see page 
365), 2 for each congressional district, and 4 
delegates-at-large to represent the senators, ^ to 
which the republican convention adds 2 from 
each territory, and 1 from the District of Colum- 
bia, though these have no votes in a presidential 
election (see pages 358, 360). ^ This gives some 
800 delegates, and there are usually more than 
10,000 spectators, making a host larger than the 
army with which the Greeks conquered at 
Marathon. ^ 

iBii.216. 2Biii73 3Bii.l75. 4Bii.217. 



THE NATIONAL CONVENTION 369 

The republican convention votes by individuals, 
and nomination requires a majority of the dele- 
gates. The democratic convention by what is 
called the unit rule votes by states, the entire 
vote of the stato being cast as the majority elect ; 
and nomination requires a f vote. ^ 

After organization and settling contests as to 
which are legitimate delegates, the first business 
is the adoption of a platform. ^ The nomination 
is made by calling the roll of states, the candi- 
date usually being nominated by some delegate 
from his own state, and seconded by one or 
several delegates, all delivering carefully pre- 
pared speeches. There are usually from 8 to 12 
candidates. ^ 

Then the balloting begins. Sometimes, as of 
Martin Van Buren in 1835, Henry Clay in 1844, 
and McKinley in 1900 the choice is made by ac- 
clamation; sometimes it takes days. In 1852 
Pierce was nominated on the 49th ballot, and 
Scott on the 53d. ^ Bryce says (ii.l80) : '' What 
a party wants is not a good president but a good 
candidate;" and if it develops that the man most 
thought of cannot win, a '^dark horse" is in- 
troduced. Thus in the republican convention of 
1880 Garfield, who up to the 34th ballot had not 
received more than 2 votes, was nominated on 
the 36th; and in 1868, Seymour got his first 

iBii.175. 2B ii.l76. 323. ^ b ii.l76. ^ B ii.l77. 



370 THE PRESIDENT 

vote upon the 22d ballot, which nominated him. ^ 

In 1888 the republican convention voted by 
716 to 3 that every member of the convention 
is in honor bound to support the nominee ; but 
in 1884 the motion could not be carried, and 
many of the delegates voted the democratic 
ticket 2 (see page 179). 

In case of vacancy the vice-president becomes 
president. It was in this way that Tyler (1841), 
Fillmore (1850), Johnson (1865), Arthur (188.1), 
and Roosevelt (1901) became presidents. 

When Tyler succeeded Harrison the cabinet 
proposed to call him acting president, but he in- 
sisted upon the full title of president. The 
articles of impeachment against Johnson de- 
scribed him as president of the United States. 

In case of vacancy in both the offices of presi- 
dent and vice-president, the members of the 
cabinet perform the duties till the vacancy is 
filled in the following order : 

1. secretary of state; or if there be none, 

2. secretary of the treasury; or if there be 
none, 

3. secretary of war ; or if there be none, 

4. attorney general ; or if there be none, 

5. postmaster general ; or if there be none, 

6. secretary of the navy ; or if there be none, 

iBii.182. 2Bii.i78. 




SUCCESSION IN CASE OF VACANCY 371 



7. secretary of the interior; or if there be 
none, 

8. secretary of agriculture. 

Whenever a cabinet officer assumes the duties 
of president, if congress is not in session or is 
not to meet within 20 days, he must convene, 
congress. 

To be ehgible the members of the cabinet must 
have been appointed by the advice and conseni 
of the senate, must have the constitutional quali- 
fications for president, and must not be under 
impeachment. 

The qualifications required are, (a) he must be 
a native born citizen, (6) 35 years of age, and (c) 
14: years a resident (57). 

It is assumed that, though born here, if he 
has spent all but 13 years of his life abroad he 
has hardly the acquaintance with our institu- 
tions or the interest in them to quahfy him for 
the office. 

The salary is 150,000. Congress may increase 
or diminish it, but not so as to affect the presi- 
dent in office (59). The makers of the constitu- 
tion feared to make it possible for congress to 
influence the action of a president b}^ changing 
his salary. The salary was 825,000 up to 1873. 
He has also the White House as an executive 
mansion, with fuel, light, care, and many other 
allowances. 



372 THE PRESIDENT 

The oath he takes is as follows : ' ' I do solemnly 
swear (or affirm) that I will faithfully execute 
the office of president of the United States ; and 
will to the best of my ability preserve, protect, 
and defend the constitution of the United States ' ' 
(60). 

The 5 vice-presidents all took this oath when 
they became presidents. 



CHAPTER XXXVII 

POWERS OF THE PRESIDENT 

While the power of the president is chiefly 
executive, he has Hke the governor legislative 
power (24^ 25) through the veto, ^ the conditions 
of which are substantially the same as in New 
York (191 ; see page 242). 

Bryce goes so far as to say (i.222) : '^ The presi- 
dent is commander-in-chief of the army, but the 
numbers and organization of the army are fixed 
by statute (see page 397). The president makes 
appointments, but the senate has the right of 
rejecting them, and congress may pass acts speci- 
fying the qualifications of appointees, and re- 
ducing the salary of any ofiicial except the presi- 
dent himself and the judges. The real strength 
of the executive, therefore, the rampart from 
behind which it can resist the aggressions of the 
legislature, is in ordinary times the veto power. 
In other words, it survives as an executive in 
virtue not of any properly executive function, 
but of the share in legislative functions which 
it has received ; it holds its ground by force, not 
of its separation from the legislature, but of its 

J B i.o2, 230 ; Hadley, page 80. 

(373) 



8T4 POWERS OF THE PRESIDENT 

participation in a right properly belonging to the 
legislature. ' ' 

Like the governor, too, (see page 191) he 
may call special sessions of both houses of con- 
gress, adjourn them when they fail to agree as 
to a time, and recommend at all sessions such 
measures as he considers desirable (64). 

The president's message, as his address to con- 
gress at its opening is called, is a document of 
much moment. He has full information con- 
cerning all the departments of government (61), 
and often makes known in his message for the 
first time v^hat have been secrets of diplomacy. 

Washington and John Adams delivered their 
messages orally, but Jefferson began the custom 
that has continued of sending a written mes- 
sage. 1 The king's speech is always read in par- 
liament. 

Like the governor (see page 193) he has the 
judicial power to grant reprieves and pardons, ex- 
cept in case of impea^chment (61). Large classes 
of citizens are usually pardoned by congress. 

But, hke the governor (see page 191), his power 
is mainly executive ; '' he shall take care that the 
laws be faithfully executed ' ' (64). In this respect 
his power and his responsibility are greater than 
those of the governor, because the entire ma- 
chinery of federal government is directly under 

iBi.20o. 



MAINLY EXECUTIVE 375 

him, instead of being largely local, as in the 
state (see page 353). ^ 

Bryce says (i.76): '^Four-fifths of his work is 
the same in kind as that which devolves on the 
chairman of a commercial company or the man- 
ager of a railway, the work of choosing good 
subordinates, seeing that they attend to their 
business, and taking a sound practical view of 
such administrative questions as require his de- 
cision. Firmness, common sense, and most of 
all, honesty, an honesty above all suspicion of 
personal interest, are the qualities which the 
country chiefly needs in its chief magistrate. ' ' 

Of course he must execute tlie laws as he finds 
them; he can not pronounce upon the wisdom 
of a law; if it stands on the statute books he 
must obey it as implicity as his stable-boy, ^ 
though Andrew Jackson assumed further power 
(see page 290). In the attempt of the makers of 
the constitution to keep entirely distinct the 
executive and the legislative departments^ (see 
page 376) congress is allowed in many ways to 
hamper him. ^ It may refuse to grant him the 
legislation he asks for, ^ or it may attach to an 
important bill provisions that he must assent to 
in order to save the bill. 

Thus in 1867 congress attached to the appro- 

' B i.508. 2B i.213. ^ b i.86, 330, 277, 283. 
*Bi.385, 288. ^ g i,208. 



376 POWERS OF THE> PRESIDENT 

priation bill a clause that virtually took the com- 
mand of the army from President Johnson and 
gave it to Gen. Grant ; and the president, lacking 
the power of the governor to veto certain items 
(191), yielded, because the majority was sufficient 
to over-ride a veto. In 187 9 congress attached 
to important bills measures affecting the south. 
The president vetoed them in two successive ses- 
sions, and resisted successfully because the 
majority in congress could not command a f 
vote. 1 

Bryce says (i.215, 211, 221; see also 285): 
"" The struggle for popular hberties in England 
took at first the form of a struggle for the su- 
premacy of law ; that is to say, it was a struggle 
to restrain the prerogative of the king by com- 
pelling his ministers to respect the ancient cus- 
toms of the land and the statutes passed in parlia- 
ment. As the customs were always maintained, 
and the range of the statutes constantly widened, 
the executive was by degrees hemmed in within 
narrow limits, its discretionary power restricted, 
and that characteristic principle of the constitu- 
tion, which has been weU called ' the reign of 
law', was established." * ^ ^ 

^ ' Power means nothing more than the extent 
to which a man can make his individual will pre- 
vail against the wills of other men, so as to con- 

"^Bi.211, 215, 220, 285. 



RELATION TO CONGRESS 377 

trol them. Hence, when the law gives to a 
magistrate a wide discretion, he is powerful, 
because the law clothes his will with all the 
power of the state. On the other hand, if the 
law goes into very minute details, directing the 
official to do this and not to do that, it narrows 
the discretion of the executive magistrate. His 
personal will and choice are gone. He can no 
longer be thought of as a co-ordinate power in 
the state. He becomes a mere servant, a hand 
to carry out the legislative bidding of the brain, 
or, we may even say, a tool in the legislative 
hand." * * * 

' ^ When the two houses are of one mind, and 
the party hostile to the president has a f major- 
ity in both, the executive is almost powerless. 
It may be right that he should be powerless, be- 
cause such n^ajorities in both houses presumably 
indicate a vast preponderance of popular opinion 
against him. The fact to be emphasized is, that 
in this case all 'balance of powers' is gone. 
The legislature has swallowed up the executive, 
in virtue of the principle from which this dis- 
cussion started, viz. , that the executive is in free 
states only an agent who may be so limited by 
express and minute commands as to have no 
volition left him." 

But Bryce says further (i.278, 68, 61, 269, 90; 
see also 50): -'Nevertheless his office retains a 



378 POWERS OF THE PRESIDENT 

measure of solid independence in the fact that 
the nation regards him as a direct representative 
and embodiment of its majesty, while the cir- 
cumstance that he holds office for 4 years only 
makes it possible for him to do acts of power 
during those 4 years which would excite alarm 
from a permanent sovereign. Entrenched behind 
the ramparts of a rigid constitution, he has re- 
tained rights of which his prototype the Enghsh 
king has been gradually stripped. " * * * 

' ' Once or twice, as when Jefferson purchased 
Louisiana, and Lincoln emancipated the slaves 
in the revolted states, he has courageously ven- 
tured on stretches of authority, held at the time 
to be doubtfully constitutional, yet necessary, 
and approved by the judgment of posterity." 

^ ' Abraham Lincoln wielded more authority 
than any single Enghshman has done since OUver 
Cromwell. ' ' 

'' The American people have a practical apti- 
tude for politics, a clearness of vision and capac- 
ity for self-control never equalled by any other 
nation. In 1861 they brushed aside their darling 
legalities, allowed the executive to exert novel 
powers, passed lightly laws whose constitutional- 
ity remains doubtful, raised an enormous army, 
and contracted a prodigious debt. Eomans could 
not have been more energetic in their civic duty, 
nor more trustful to their magistrates. When 



RELATION TO THE CONSTITUTION 



379 



the emergency had passed away the torrent 
which had overspread the plain fell back at once 
into its safe and well-worn channel. The reign 
of legality returned; and only four years after 
the power of the executive had reached its high- 
est point in the hands .of President Lincoln, it 
was reduced to its lowest point in those of Presi- 
dent Johnson. Such a people can work any 
constitution." 

Some comparisons between the power of the 
president and those of the governor ^ and of the 
king of England may be found interesting. 



President 

must be a native ; 

must be 35 years old ; 

must have been 14 
years a resident ; 

salary 150,000 and 
residence ; ^ 

term 4 years; 

directs foreign policy; 

commands army and 
navy; 

controls post- office 
appointments ; 

must veto all the pro- 
visions of a bill if any. 



Gomrrwr 

must be a citizen; 
must be 30 years old ; 
must be a resident; 

salary $10,000 and 
residence ; 
term 2 years; 
no such power; 
commands militia; 

no state post-office ; 

may veto some pro- 
visions of an appropria- 
tion bill and approve 
the rest. 



1 B i.508. 



880 



POWERS OF THE PRESIDENT 



King of England 

chosen by heredity ; 
term for hf e ; 
allowance, about 2 J 
millions ; 

may declare war; 
never does;^ 

does not have it ; 

makes them abso- 
lutely ;2 

makes them abso- 
lutely ; 

has enormous ecclesi- 
astical patronage ; ^ 

may do so at will ; 

may dissolve parlia- 
ment at will; 

changes his cabinet 
when it ceases to com- 
mand majority. * 

The vice-president, like the lieutenant-governor 
(see page 198), cuts a small figure except for the 
possibility of there being a vacancy in the presi- 
dency (95 ; see page 370). 

He is Hke the lieutenant-governor presiding 
officer of the senate, with a casting vote in case 
of a tie, but he cannot like the lieutenant-gov- 

iBi.90. 2Bi.37. 3Bi.217. *Bi.271. 281. 



President 

chosen by election; 
term 4 years; 
salary 150,000; 

can not declare war ; 

always sits in cabinet 
meetings ; 

has veto power; 

submits treaties to 
senate ; 

submits important 
appointments to senate; 

has no ecclesiastical 
patronage ; 

may not confer titles ; 

can not dissolve con- 
gress ; 

keeps his cabinet 
throughout the term. 



THE VICE-PRESIDENT 381 

ernor appoint committees (see page 245), that 
power being in the hands of the senate. 

In election he is always associated with the 
president, the qualifications and manner of 
nomination and election being the same (65, 95 ; 
see page 371). 

The presidents from New York by election 
have been Martin Van Buren (1837-41) and 
Grover Cleveland (1885-9, 1893-7); by succes- 
sion, Millard Fillmore (1850-53), Chester A. 
Arthur (1881-5), and Theodore Eoosevelt (1901- 

The vice-presidents elected from New York are 
as foUows: George Chnton (1805-12); Daniel D. 
Tompkins ^1817-25); Martin Van Buren (1833 
7); Millard FiUmore* (1849-50); WiUiam A. 
Wheeler (1877-81); Chester A. Arthur* (1881); 
Levi P. Morton (1889-93); Theodore Eoosevelt* 
(1901). 

* Succeeded to tlie presidency. 



CHAPTER XXXVIII 

CIVIL SERVICE reform' 

One source of the president's power is his con- 
trol over appointments. ^ Directly or indirectly 
all executive offices are filled by men whom he 
names (62^ 63). True, his most important 
nominations must be confirmed by the senate, ^ 
but he alone has the initiative of selection. 

This has been a burden and a danger, as well 
as a power. Their constituents have besieged 
congressmen for government offices; congress- 
men have besieged the president ; and time that 
should have been given to weightier matters has 
been spent in calculating how patronage should 
be distributed. Vice-president Colfax told of a 
clergyman from a small town who caUed on 
President Lincoln in the interest of a man who 
wanted to be postmaster there, and began by 
sympathizing with Mr. Lincoln upon the enor- 
mous responsibility with which the war was 
loading him down. 

' ' Oh, it is not the war, ' ' repHed Mr. Lincoln ; 
" I can get along with the war very well. It is 
your plaguy little post-office that is killing me." 

iBi.207. 2Bi.l06. 

(382) 



PUBLIC OFFICE A PUBLIC TRUST 383 

The civil service is the general term apphed to 
the vast army of persons that are employed in 
the state or government offices, as clerks, ac- 
countants, inspectors, keepers, etc. 

In England great abuses arose because those in 
power appointed as subordinates in public offices 
through favoritism, using the appointing power 
as patronage (from Latin pater ; see page 148), 
and choosing men not because they were fitted 
but because they were relatives, or friends, or 
had rendered services to the party ; sometimes 
because they had paid money to be appointed. 

This led to civil service reform, under which 
parliament decreed that no officer should be dis- 
placed so long as he did his duty ; that vacancies 
should be filled by those in lower places so far as 
competent ; and that new appointments should 
be made only by competitive examination, in 
which the political affiliations were not consid- 
ered. This is known as the merit system. ^ 

In the early years of the United States gov- 
ernment office was regarded as a public trust, ^ 
and new administrations did not think it neces- 
sary to make changes in subordinate offices. 
Washington displaced only 8 persons, and all for 
cause ; John Adams but 9, Jefferson but 39 ; in 
the 16 years that followed only 16 were removed. 

1 See Report of New York senate committee, 1895, pp. iv. , v. 

2 B ii.54. 



384 CIVIL SERVICE REFORM 

Madison held that the wanton removal of meri- 
torious officers would subject the president to 
impeachment. 

In 1820 congress made 4 years the term of 
many offices, but no removals were made till 
Andrew Jackson in 1829 at once displaced 500 
postmasters. ^ In Jackson's second term, Cal- 
houn reported to the senate that the tendency of 
this practice was to commit the entire body of 
those in office into corrupt and supple instru- 
ments of power, and to raise up a host of hun- 
gry, greedy, and subservient partisans, ready 
for every service, however base and corrupt. 

Unfortunately, President Jackson was follow- 
ing a New York precedent. Before 1820 Gover- 
nor Clinton complained of '' an organized and 
disciphned corps of federal officials interfering 
in state elections ". In 1832 Marcy defended in 
the United States senate the system of partisan 
removals and short terms from the example of 
his own state. '' They [the New York poMtic- 
ians] when contending for victory avow the 
intention of enjoying the fruits of it. They see 
nothing wrong in the rule that to the victor be- 
long the spoils of the enemy. "^ 

One bulwark of this system was the doctrine 
of rotation in office which formerly prevailed. 
Maryland in her constitution of 1867 declared: 

iBii.126. 



^' TO THE VICTOR BELONG THE SPOILS " 385 

'' A long continuance in the executive depart- 
ments of power or trust is dangerous to liberty ; 
a rotation, therefore, in those departments is one 
of the best securities of permanent freedom."^ 

Bryce says (ii. 157-129): " ' Rotation in office ' 
was, and indeed by most men still is, held to be 
comformable to the genius of a democracy. It 
gives every man an equal chance of power and 
salary, resembling herein the Athenian and 
Florentine system of choosing officers by lot. It 
is supposed to stimulate men to exertion, to fos- 
ter a laudable ambition to serve the country or 
the neighborhood, to prevent the growth of an 
official caste, with its habits of routine, its stiff- 
ness, its arrogance. It recognizes that equality 
which is so dear to the American mind, bidding 
an official remember that he is the servant of 
the people ai^d not their master, like the bureau- 
crats of Europe. It forbids him to fancy that 
he has any right to be where he is, any ground 
for expecting to stay there. ^^ ^ "^ 

" Another and a potent reason why the rota- 
tion plan commended itself to the Americans is 
to be found in the belief that one man is as good 
as another, and will do weU enough any work 
you set him to, a belief happily expressed by 
their old enemy King George the Third when he 
said that ' every man is good enough for any 

1 B i.426. 



B86 CIVIL SERVICE REFORM 

place he can get. ' In America every smart man 
is expected to be able to do anything that he 
turns his hand tq, and the fact that a man has 
worked himself into a place is some evidence of 
his smartness. He is a ' practical man '. This is 
at bottom George the Third's idea; if you are 
clever enough to make people give you a place, 
you are clever enough to discharge its duties, or 
to conceal the fact that you are not discharging 
them." 

The spoils system grew until it became under- 
stood that with a change of administration all 
officers and employes would be displaced, and 
the struggle between parties was no longer for 
principles but for places. There were 120,000 
such places, and every senator and congressman 
had hundreds of applications from his constitu- 
ents, which took more of his time than he had 
left for his legitimate duties. ^ The conception 
of a public office became that of a snug berth 
to be bestowed upon a favorite, ^ and bore its 
natural fruit in building up professional poli- 
ticians and bosses (see page 185), ^ the source of 
whose power is the desire for office as a means 
of gain. 4 Patronage led naturally to jobbery, 
where contracts were given for a money consid- 
eration. '^ The very powerlessness of India to 
protect itself against official abuse brought home 

>Bii.l55. ^Bu.l21. ^ b ii.130. ^Bii.102. 



PRINCIPLES 387 

to the English mind the fact that pubhc un- 
morahty meant pubhc immorality. ' ' ^ 

In 1853 congress passed a law requiring clerks 
to pass an examination ; but it was of no avail, 
because those who should have executed it were 
hostile to it. The same was true of the law for 
competitive examinations passed in 1871. 

In 1883 both the United States and New York 
passed statutes similar in purport and which still 
regulate appointments. 

The rules adopted by the president and in 
force by the national commission provided for : 

(1) competitive examinations; 

(2) positions to be filled from those who rank 
highest in examination ; 

(3) apportionment of appointments among the 
states according to population ; 

(4) probation before permanent appointment ; 

(5) no requirement upon place-holders of con- 
tribution or political service, and no receipt of con- 
tributions in United States buildings or grounds ; 

(6) no use of office to coerce political action of 
any one ; 

(7) non-competitive examinations when com- 
petent persons do not compete ; 

(8) fun record of all examinations, appoint- 
ments, etc. : 



Hadley, page 15. 



38 S CIVIL SERVICE REFORM 

(9j not more than 2 members of any one 
family to be appointed ; 

(10) no recommendation of senator or con- 
gressman to be received, save as to character. 

The work is under 3 civil service commissioners, 
at a salary of $3,500, who appoint a chief ex- 
aminer at |3, 000, and boards of examiners in the 
states and territories as needed. 

Substantially the same rules (200) prevail in 
the civil service system of New York (see page 
209). In 1897 Gov. Black's message declared in 
favor of ' ' taking the starch out ' ' of the civil 
service laws ; and a bill was passed providing that 
the examination by the civil service commission 
should count only 50 %, while the other 60 % 
should be estimated by the head of the depart- 
ment on the basis of "practicability". This 
law, which was considered a disgrace upon Grov. 
Black's administration, was repealed in 1899. 

Whether the president has the power of re- 
moval without consent of the senate had been 
doubted, and congress by a slight majority passed 
a law giving him that power, since when it has 
never been questioned. ^ 

In 1866, however, congress passed a law for- 
bidding the dismissal of military or naval officers 
except by sentence of court-martial ; though by 
a law passed in 1867, but repealed m 1887, the 

1 Story, § 1548. 



FILLING OF VACANCIES 389 

power was for a time modified, the immediate 
purpose being to tie the hands of President 
Johnson. ^ 

The power to fill vacancies that happen dm^ing 
the recess of the senate (63) is held to cover the 
first appointment to a new office. 

He commissions all officers of the United States 
((U). The commission is a formal document, 
reciting definitely the powers conveyed, and 
sealed by the secretary of state with the great 
seal of the United States (see page 195). 

1 B i.59, 384 



CHAPTEE XXXIX 

THE president's CABINET 

We have seen that in England the early kings 
used to have a council, out of which eventually 
parliament was developed (see page 120). But 
the need of a council remained, and developed 
into the Enghsh ministry of the present day. In 
most of the colonies the governor had a council, 
often corresponding with a colonial senate (see 
page 223), and it was natural that the federal 
government should provide for some body of 
advisors to the president. 

The constitution, however, makes no mention 
of the cabinet, except that in authorizing con- 
gress to vest the appointment of inferior officers 
in the ' ' heads of departments ' ' (62) it assumes 
that there will be such officers ; and there have 
been from the first. 

The cabinet corresponds with the state admin- 
istrative officers (see page 200); but note these 
differences : 



Cabinet 
appointed by the president 

subordinate to the 
president ; 



Administrative officers 
elected by the people 

coordinate with the 
governor ; 



(390) 



COMPARED WITH NEW YORK ADMINISTRATION 891 



always of the same 
party as president ; 

term 4 years; 

salary $8,000; 

secretary of state, 
great honor and re- 
sponsibihty ; 

attorney general ; 

secretary of the in- 
terior ; 



secretary of the 
treasury ; 



secretary of agricul- 
ture ; 

secretary of war; 
secretary of the navy; 
postmaster general. 



not necessarily same 
party as governor ; 

term 2 years; 

salary $5,000; 

secretary of s t a t e , 
duties mostly clerical ; 



attorney general; 
engineer and survey- 
or has a very few of 
his functions; 

comptroller (salary 

$6,000; 
treasurer ; 

appointed by the 
governor 
sup't of banking 

($r,ooo); 

agricultural commis- 
sioner ($4,000); 

no such department; 
no such department ; 
no such department. 



The most important distinction is that while 
the cabinet is appointed by the president and 
subordinate to him, the administrative officers 
are elected like the governor, and are his col- 
leagues in government, dividing with him the 
executive functions. 



392 



THE president's CABINET 



The differences between the Enghsh ministry ^ 
and the federal cabinet, with some correspond- 
ences more or less remote, are thus shown : 



The president's cdbinet 


The English ministry 


all of equal rank ; 


prime-minister at the 
head ; 


appointed by the 
president ; 


prime-minister a p - 
pointed by the king, al- 
ways the leader of the 


holds office for 4 


opposition; the others 

by the prime-minister; 

resigns when its 


years ; 


measures cease to com- 


can not be members, 


mand majority vote in 

parhament ; ~ 

must be members of 


of congress; 

president always sits 
with it ; 


parliament ; 

the king never; 


salary 18,000; 


salary usuaUy|25,000; 


secretary of the treas- 
ury; 


r first lord of the 

J treasury ; 

1 chancellor of. the ex- 



secretary of war; 
secretary of the navy; 



1^ chequer ; 

secretary for war; 
first lord of the ad- 
miraltv : 



iBi.273. 2 B i 186, 209, 271. 



COMPARED WITH ENGLISH MINISTRY 



393 



secretary of state; 



lord privy seal; 

home secretary; 

secretary for Scot- 
land; 

secretary for Ireland; 

foreign secretary; 

colonial secretary; 
^ secretary for India ; 

postmaster general; 

president board of 
agriculture ; 
r attorney general ; 
\ solicitor general ; 

lord chancellor; 



lord president of the 
council. 



postmaster general; 
secretary of agricul- 
iure; 

attorney general; 

not in cabinet 

vice-president ; 

chief justice; 

commissioner of edu- 
cation. 

The most important difference is the tenure of 
office. The English ministry resigns v^hen it 
can no longer control a majority in parliament ; 
the American cabinet remains in office during 
the term of the president, though any member 
may be dismissed by him at any time. 

President Johnson proposed to dismiss the 
members of Lincoln's cabinet who had not re- 
signed, whereupon congress passed a tenure-of- 
office act to prevent the removals. The presi- 
dent insisted and was impeached ; but on the 
trial a single vote was lacking to convict, secre- 



894 THE president's CABINET 

tary Stanton resigned, and the senate confirmed 
the president's nomination. 

Another difference is the power of choice. In 
England the king originally appointed his minis- 
ters, but now when the ministry is defeated, the 
leader of- the opposition party must be sum- 
moned and asked to form a ministry. 

The president has full power to appoint all the 
members of his cabinet, and though the senate 
has the nominal power to reject his nominations 
it has seldom done so. In 1833 it rejected Koger 
B. Taney; and in 1869 A. T. Stewart (see p. 406). 

Still another difference is in responsibility. 
The English ministers are always members of 
parliament; they bring forward the measures 
they have prepared, nominally under instructions 
of the king, ^ defend them, and carry them if 
possible. If these measures are passed, the 
ministers are responsible for them (see below). 

In the effort to keep the executive and legisla- 
tive departments entirely distinct, the members 
of the cabinet are constitutionally prohibited 
from being members of congress (22), which 
passes its laws independently of them; hence 
there is divided responsibility. ^ 

A fourth important difference is that the king 
never sits in his cabinet, so that he may not be 
held accountable for its action ; while the presi- 

iBi..")3. 2 Bi. 277. 217. 



REQUIREMENTS FOR CIVIL OFFICE 395 

dent ahvays does, because he is accountable and 
needs its advice. ^ 

The salary of cabinet officers is $8,000. Their 
rank may be indicated from the order in which 
they become eligible to the presidency (see page 
370). 

There are several 'general requirements for all 
civil officers of the United States. No congress- 
man may be appointed to any civil office created 
or increased in salary during the time for which 
he was elected (22 ; see page 437). Civil officers 
may not be presidential electors (54), or con- 
gressmen (22) ; or, except by permission of con- 
gress, accept present, emolument, office, or title 
of any kind whatever from any king, prince, or 
foreign state (50; see page 344). 

All civil officers, including the president and 
vice-president, may be removed from office by 
impeachment for treason, bribery, or other high 
crimes and misdemeanors (65 ; see page 458). 

All officers are bound by oath to support the 
constitution (82). ^In 1862 congress prescribed 
what was called the ' ' iron-clad ' ' oath, that the 
person had never taken arms against the United 
States or aided its enemies, or sought or held 
office under any government hostile to the United 
States. It was pronounced by the supreme court 
unconstitutional (46) so far as it applied to attor- 
neys of that court. It was repealed in 1884. 

iBi.90. 



CHAPTER XL 

STATE, WAR, NAVY, POST-OFFICE DEPARTMENTS 

The secretary of state occupies the place of 
honor in the cabinet. He receives all ambassa- 
dors from abroad and introduces them to the 
president, and has general charge of our inter- 
national relations (see page 462). Though now 
known as the department of state, this office 
was formerly called the department of foreign 
affairs, showing the original conception of its 
purpose. 

The secretary of state is also the guardian of 
the archives of the government. He keeps the 
seal of the United States, and affixes it to com- 
missions issued by the president. All the acts 
and resolutions of congress are filed in this de- 
partment. All the papers relating to pardons 
are kept here. 

The secretaries of state from New York have 
been Martin Van Buren (1829-31), Wilham L. 
Marcy (1853-57), William H. Seward (1861-69), 
Hamilton Fish (1869-77), and Wilham M. Evarts 
(1877-81). 

The attorney general is, like the state attorney 
general (see page 201), the chief law officer of 

(3%) 



WAR DEPARTMENT 397 

the government, and conducts suits in the su- 
preme court in which the United States is a 
party. He has general supervision of the vari- 
ous district attorneys and marshals of the United 
States (see page 28^). When requested he gives 
legal opinions to the president and the cabinet 
officers. 

He is assisted by a solicitor general (see page 
259), salary $7, 000 ; and by 6 assistant attorney 
generals, 5 of them at $5,000, and 1 at $4,000. 

The attorney generals from New York have 
been Benjamin F. Butler (1833-8), i Wm. M. 
Evarts (1868-9), Edwards Pierrepont (1875-6). 

The secretary of war is the agent of the war 
legislation of congress (36-41). He is at the 
head of the war departnient, and under direction 
of the president has charge of the army. As 
the constitution forbids the states to keep stand- 
ing armies (52), the national troops are the only 
regular soldiers (see page 196). 

The secretaries of war from New York have 
been John Armstrong (1813-14), Peter D. Porter 
(1828-9), Benjamin F. Butler (1837), John C. 
Spencer (1841-3), William L. Marcy (1845-9), 
Daniel S. Lamont (1893-7), Elihu Eoot (1899-). 

The act of April 22, 1898, declares that the 
military forces of the United States consist of 
all able-bodied men between the ages of 18 and 

^ 1 Prentice, page 409 



398 WAR DEPARTMENT 

45 (compare page 193). In 1880 the army 
consisted of 26,000 men. In 1898 the regular 
army was increased to about 60,000. The law 
of March 2, 1899, authorized the president to 
maintain the regular army at a strength of not 
more than 65,000 until July 1, 1901, when it 
was to be reduced to the numbers it had prior to 
1898, excepting a small increase of artillery 
The same law also authorized a temporary vol- 
unteer army of 35,000. 

Congress has power to make rules for the 
army (37-40). The present articles of war num- 
ber 128; they are mainly as first adopted in 
1806 ; they must be signed by every officer, read 
to every recruit at time of enlistment, and read 
every six months to all -troops. 

Flogging in the army was abohshed in 1812, 
but from 1833 to 1861 there was an exception in 
case of deserters. 

Congress alone has the power to declare war 
(36; see page 469). It may also make appropria- 
tions to carry on a war, but only for two years 
in advance (37), thus giving the people oppor- 
tunity to elect a new house if it disapproves of 
the war. 

This had been the rule in England for more 
than. a century before the American revolution. 

Congress has power to caU out the militia (41) ; 
(see page 196). 



DECLARING WAR 399 

Congress also makes rules for captures on 
land and water (36). Such property is usually 
distributed among the captors, but it must be 
proved that the property was taken from the 
enemy. 

Congress has exclusive power (36) to grant 
letters of marque (a French word meaning bound- 
ary), authorizing persons to cross a frontier and 
take the persons or property of another nation, 
and reprisal (from Latin re back and prehendere, 
to take, a re-taking) authorizing the captain of 
a vessel to seize the property of a foreign nation, 
or its subjects as a reparation for some injury. 
When given to the master of a vessel, the latter 
becomes a privateer (from Latin privus, single), 
and may do what without these letters would 
be the act of a pirate (35 ; see page 473). 

Blackstone says letters of marque and reprisal 
are grantable by the law of nations wherever 
the subjects of one state are oppressed or injured 
by those of another, and justice is denied by the 
state to which the oppressor belongs. 

Letters of marque are sometimes issued before 
war is declared; sometimes they occasion war, 
and sometimes prevent it. 

Most nations have mutually agreed to abolish 
privateering, and while the United States has not 
entered into such agreement it did not allow pri- 
vateering in 1898 during the war with Spain. 



400 WAR DEPARTMENT 

The secretary of war has immediate control of 
the West Point mihtary academy, and of similar 
schools to be established. 

Most of the engineering work in the District 
of Columbia (see page 360) has been done by 
army engineers, and these are employed in gov- 
ernment work upon rivers and harbors all over 
the country. 

The war department has incidentally developed 
functions that pertain to peace. Thus the signal 
service, originally formed to communicate be- 
tween one part of the field and another by flags 
and other signals more rapidly than would be 
possible by messengers, naturally gave notice of 
approaching storms; in this way grew up the 
"^ meteorolgical or weather bureau, which gets re- 
ports from hundreds of stations all over the 
country, and publishes the probable weather for 
the coming 24 hours. This has proved of great 
value, especially to farmers and to seamen. 
These functions became so important that the 
bureau was transferred to the department of 
agriculture (see page 421). 

The secretary of the nary executes the laws of 
congress relative to the navy (38), under general 
direction of the president. He also has charge 
of the naval school at Annapolis. 

The secretaries from New York have been 
Smith Thompson (1818-23), James K. Paulding 



POST-OFFICE DEPARTMENT 401 

(1838-41), William C. Whitney (1885-9), and 
Benjamin F. Tracy (1889-93). 

The postmaster general has charge of the post- 
offices of the country and the carrying of the 
mails. 

The postmaster generals from New York have 
been Francis Granger (1841), Nathan K. Hall 
(1850-2), Thomas L. James (1881), Wilson S. 
Bissell (1893-5). 

The carrying of private letters by the govern- 
ment was first undertaken by government in 
England, about the time the English colonies 
were founded here. In 1639 Massachusetts or- 
dered that all letters from abroad be taken to the 
house of Eichard Fairbanks, who was allowed 
one penny each for taking care of them. In 
1657 Virginia passed a law requiring every 
planter to convey letters to the next plantation. 
In 1672 New York city established a monthly 
mail to Boston. 

In 1704 England created the office of post- 
master general of America, but little was done 
till in 1753 Benjamin Franklin became deputy. 
He had been postmaster of Philadelphia, and he 
so improved the service that it more than paid 
expenses. When he was removed in 1774 there 
was for a time no public postal service. 

In 1775 the continental congress made him 
postmaster general, and in 1789 congress recog- 



402 POST-OFFICE DEPARTMENT 

nized the post-office department as existing. The 
postmaster general became a cabinet officer in 
1829. 

There are some 75,000 post-offices. The post- 
masters were at first all appointed by the post- 
master general, but in 1863 all appointments 
where the salary was 11,000 or more were en- 
trusted to the president (see page 382). 

Mail matter is divided into four classes, — first- 
class including letters and all sealed matter; 
second-class, including periodicals admitted to 
this class by the postmaster general ; third-class, 
including all other printed matter; and fourth- 
class, including merchandise. 

The rates are: 1st class, 2 cts. per ounce;. 2d 
class 1 cent per pound ; 3d class 1 cent for each 
2 ounces ; 4th class 1 cent an ounce. These rates 
apply to the Philippines and to Alaska. How 
low they are appears from the fact that in 1845 
it cost 6 cents to send a letter 30 miles, and so 
on up to 25 cts. for sending it 400 miles. Yet it 
is probable that before long the letter rate will 
be only 1 cent per ounce. 

As a protection against loss of money sent in 
the mail, letters may be registered. There is a 
special fee of 8 cents for which the post-office 
carries these letters in a separate pouch, and de- 
livers them only upon receipt of the person to 
whom they are addressed. Since 1897 it has 



RATES OF POSTAGE 403 

been possible to recover from the government 
money lost in registered letters, to the amount 
of 110. The money order system is also under a 
special superintendent, and sends money safely 
for a small fee. 

In Europe there is what is called a parcels-post 
division of the post-office, performing the func- 
tions of our express companies at much lower 
rates. The telegraph system of several foreign 
countries is also managed by the post-office as a 
national institution. 

Letters have for a long time been delivered to 
their addresses in cities and villages; and now 
the system of rural free delivery is rapidly grow- 
ing, by which carriers deliver letters at every 
farm-house, and take letters ready for mail. 

The foreign mails are under a special superin- 
tendent. 

The power of congress to establish post-roads 
(32) has been interpreted to authorize internal 
improvements. In 1803 congress authorized the 
use of 3 ^ of the net proceeds of the sale of pub- 
lic lands in Ohio for the construction of roads 
there, and in 1806 it voted to construct the 
^' national road " from the Potomac to the Ohio. 
Usually, however, the construction of roads has 
been left to the states. The postmaster general 
makes the contracts for carrying the mail. 

Under authority of this provision an inter- 



404 POST-OFFICE DEPARTMENT 

state commerce commission (see page 517) was 
established by congress in 1887, composed of 5 
members appointed by the president and con- 
firmed by the senate; salary 17,500. At that 
time 27 states had similar boards, but none of 
them could control railways except within their 
own states. 

This commission is not connected with any of 
the departments of government. 

This provision is also made authority for in- 
terference of the national government with rail- 
way strikes. To stop or hinder a train carrying 
United States mail is an offence against national 
laws, and will be prevented if necessary by 
United States troops (see page 349). 



CHAPTER XLI 

TREASURY DEPARTMENT, 

The secretary of the treasury is the financial 
head of the government, and it is through him 
that most of the financial laws passed by con- 
gress go into effect. Unlike the corresponding 
chancellor of the exchequer in England, who is 
the only member of parliament who ever intro- 
duces a bill to raise money, he has officially little 
influence upon the action of congress. ^ 

In 1776 the continental congress appointed a 
standing committee to superintend the treasury, 
but in 1881 t^iis was displaced by Eobert Morris 
as superintendent of finance. For his wise 
management the country is indebted to him, per- 
haps second only to Washington, for its success 
in the struggle for independence. 

The United states treasurer is an officer of this 
department. His salary is |6, 000. 

The secretaries of the treasury from New York 
have been Alexander Hamilton (1789-95), John 
C. Spencer (1843-4), John A. Dix (1861), Charles 
J. Folger (1881-4), Daniel Manning (1885-7), 
Charles S. Fairchild (1887-9). Alexander T. 

iBi.171, 210. 

(405) 



406 TREASURY DEPARTMENT 

Stewart was appointed by Gen. Grant in 1869, 
but not confirmed by the senate, being ineligible 
as an importer (see page 394). 

The power of congress to establish uniform 
weights and measures (30) is exercised through 
him. Sales are usually by the pound, the bushel, ^ 
the foot ; and these must mean the same thing 
everywhere. 

Congress has never made this uniformity 
obligatory; but in 1828 it adopted the Enghsh 
troy pound weight, and in 1836 it directed the 
secretary of the treasury to send to each state a 
set of the weights and measures on the British 
standard used in the custom house ; these have 
been adopted by the states as their standards. 

Congress legalized the metric system in 1866, 
and has passed some laws to encourage the use 
of the metric system, one of them making it 
possible to enforce contracts which employ this 
system. In 1875 it established a bureau of 
weights and measures, which in 1889 received 
copies of the international standard meter and 
kilogram. In 1893 the secretary of the treasury 
ruled that these should be fundamental stand- 
ards, the yard being defined as |-||-^ of a meter, 
and the pound avoirdupois as ^'Yi-rr ^^ ^ kilo- 
gram. 

The secretary of the treasury controls the 
money (from Latin moneta^ money) of the coun- 



WEIGHTS AND MEASURES '407 

try. Money is the medium through which all 
other commodities are valued and exchanged. 
The Indians used furs and strings of beads for 
this purpose ; but gold, silver, copper, and nickel 
have been found the most available by civilized 
nations. In early times silver and gold were 
weighed every time they were employed; the 
knights of the middle ages carried scales a.t their 
sides to weigh silver. Afterwards it was found 
more convenient to make coin, that is, pieces of 
a specified weight, stamped by the government 
or some authorized agent. 

The value stamped upon a coin fixes its value 
within the jurisdiction of the government stamp- 
ing it, but outside its real value is fixed by the 
commerce of the world (see page 410). Thus 
the Mexican silver dollar is worth in trade with 
other nations about half a dollar in gold, while 
an American silver dollar containing no more 
value in metal is worth anywhere a dollar in 
gold, because with the United States stamp up- 
on it a dollar in gold or its equivalent may al- 
ways be had in exchange for it. 

One of the powers granted to congress alone 
(51) is to coin money, and this it does through 
the secretary of the treasury, at various mints 
(also from moneta), that in Philadelphia having 
branches in New York, Denver, and San Fran- 
cisco. 



408' TREASURY DEPARTMENT 

All gold and silver coins have y^. alloy, and are 
thus yV fi^^' Enghsh gold has yV ^^^J 5 Eng- 
lish silver J^. 

The English government did not permit the 
colonists to coin money, though Massachusetts 
did so in 1652. The confederation did not coin 
money, but used the Spanish dollar or '^ piece of 
eight" as the unit. The doUar was adopted 
with a decimal system in 1785, but no coins were 
issued until the mint was estabhshed at Phila- 
delphia in 1792. 

The mints make no charge for coining gold, 
except for the copper used in the alloy. Un- 
coined gold and silver is called bulliou. 

The following coins are now struck off : 

gold 12.50, ^3, $5, $10, $20. The gold dollar 
weighs 25.8 grains, and contains 23.22 grains of 
pure gold; 

silver Si, 50 cts., 25 cts., 10 cts. Tha silver 
dollar weighs 41 2 J grains, and contains 371 J 
grains of pure silver. The smaller coins weigh 
at the rate of 385.8 grains or 25 grams to the 
dollar ; 

nickle 5 cts. ; 

bronze 1 cent. 

Other coins have been struck off and are 
sometimes used. The coinage of the gold doUar 
was discontinued in 1890. 

Gold coins and silver dollars are legal tender 



GOLD THE MONETARY STANDARD 409 

for any amount, — that is they must be accepted 
for all purchases, debts, and other obligations. 
Smaller silver coins are legal tender to the 
amount of |10. The nickle and bronze coins are 
legal tender to the amount of 25 cts. The states 
are forbidden to make anything but coin legal 
tender (51). 

The reason why the final value of a silver coin 
depends upon the amount of gold it will procure 
is that the relation of gold to silver varies, as the 
quantity of each produced from the mines varies 
from year to year. Jefferson said : ^ ' The pro- 
portion between the values of gold and silver is 
a mercantile problem altogether." Thus in 
1792 the value of a pound of gold was 15 times 
that of a pound of silver, the gold dollar con- 
taining 24| and the silver dollar STlJ grains of 
pure metal; in 1901 it is 31 times the value of a 
pound of silver. At first the value of the gold 
increased; so in 1834 the pure gold in the dollar 
was reduced to 23^ grains, making the ratio 16 
to 1. Then silver began to increase in relative 
value, and the silver coin was worth more by 
weight than gold coin, whereupon it disappeared 
from circulation. 

It became manifest that there must be only 
one standard, and gold was chosen. Great Bri- 
tain had adopted gold as a standard in 1816, sil- 
ver being legal tender only for 40 shilhngs. In 




410 TREASURY DEPARTMENT 

1853 the silver coins below the dollar were made 
lighter, two half-dollars having 34:5.6 grains of 
pure silver instead of 371 J, so as to be worth by 
weight less than gold coins. This kept them in 
circulation, and as they can be exchanged for 
gold there is no loss in accepting them. 

In 18T3 the silver dollar was dropped, but in 
1878 it was restored and made legal tender for 
debts. The coinage was to be not less than 2 
millions a month. In 1890 congress passed the 
Sherman act, requiring the secretary of the 
treasury to buy 4J million ounces a month, but 
repealed it in 1893. In 1898 congress directed 
the secretary to coin the silver purchased under 
the Sherman act at the rate of not less than IJ 
millions a month, and in 1900 directed that the 
dollars so coined be used to redeem treasury 
notes, which are then to be cancelled and retired. 

When the silver dollar was dropped in 1873, 
a silver coin was adopted for trade with China 
of the same weight as the Mexican doUar much 
used in eastern trade, and somewhat heavier 
than an old silver dollar. This was called a 
trade-dollar, and was legal tender until 1876, 
when although coined it became only bullion. 
In 1887 congress authorized standard doUars to 
be given in exchange for trade-dollars. 

Congress also acts through the secretary of the 
treasury in fixing the value of foreign coins (see 



STJB-TREASURIES 411 

page 407). Thus the Enghsh pound sterhng is 
received by our government officers at 14.8665. 
No foreign silver coin is accepted or valued by 
the government. Since 1857 no foreign coin has 
been legal tender. Canadian silver and bills are 
sometimes refused except at a discount. 

The secretary of the treasury has charge of all 
money paid into the treasury, and of all the dis- 
bursements. When there was a United States 
national bank the treasurer deposited his funds 
there. After the bank was discontinued the 
funds were distributed among certain state banks, 
and much loss resulted during the financial panic 
of 1837. In 1840 sub- treasuries were estab- 
Hshed, and are now located in 

Baltimore, New York, 

Boston, Philadelphia, 

Chicago, St. Louis, 

Cincinnati, San Francisco, 

New Orleans, Washington. 

The constitution gives congress power (26, 27) 
which is exercised through this department to 
raise money (a) for the payment of debts, (b) for 
the common defence, (c) for the general welfare. 
The confederation had no power to enforce 
enlistment or the raising of money, being depend- 
ent upon the voluntary action of the states (see 
page 351). 

The term general welfare needed to be im- 



412 TREASURY DEPARTMENT 

pressed on the states, for at the time the consti- 
tution was formed they were jealous rivals of 
one another. But the term is so comprehensive 
that its interpretation has been one of the divid- 
ing hnes of the two great parties (see page 182), 
the one sometimes claiming that it may be ex- 
tended to cover a heavily protective tariff (see 
page 297), liberal appropriations for public im- 
provements, etc., while the other has held its 
sense to be more restricted. 

At the opening of congress the secretary of 
the treasury presents a report to congress, giving 
his balance-sheet for the preceding year, and his 
estimate of the amounts likely to be received and 
needed for the coming year. Usually the ex- 
penditures are more than the receipts, and pro- 
vision is required to raise money; but sometimes 
there has been a surplus, the income from indi- 
rect taxes being more than was needed for the 
expenses of government and payments on the 
public debt. In 1901 this made it necessary to 
discontinue most of the stamps upon commercial 
paper (see page 298). 

During o/resident Cleveland's administrativon 
there was a surplus income of 100 millions. If 
allowed to accumulate this would absorb money 
from the channels of trade, so bonds not yet due 
were purchased at a premium, and money was 



GREENBACKS 413 

deposited in national banks. This was done also 
in 1901. 

Congress raises money (1) by levying (a) direct 
taxes, (b) imposts, or (c) excises (see page 296); or 

(2) by borrowing (27). This is rendered neces- 
sary chiefly during wars, the civil war running 
up the amount of national debt to nearly 3,000 
millions, the amount borrowed for the four years 
1861-5 averaging nearly 600 millions a year. 
Id 1891 the amount was 1,560 millions, and in 
1900 2,105 millions, half of it interest -bearing. 
In 1901 that of England was 44 billions. 

This money was secured partly by the issue of 
government notes, the ' ' bills of credit ' ' of the 
constitution (51 ; see page 342), which from their 
color were called greenbacks, and in 1862. against 
protest that the act was unconstitutional, were 
made a legal tender (see page 408) except for 
duties on imports and interest on the public debt, 
which are always payable in gold. The secretary 
of the treasury used these bills himself to pay 
the wages of soldiers and to buy supplies for the 
army. But as he had not coin in which to re- 
deem these bills, the value of coin began to rise, 
till in July, 1864, it took nearly |300 in green- 
backs to buy $100 in gold. As people were 
obliged to sell goods for greenbacks, they raised 
the prices accordingly, till a nominal dollar 
would buy only J as much as before the war. 

After the war ended in sustaining the govern- 



414: 



TREASURY DEPARTMENT 



ment, confidence grew and the price of gold fell 
till finally on Jan. 1, 1879, the day appointed by 
congress for the resumption of specie payments, 
that is for paying out at the treasury 810 in gold 
for every $10 in greenbacks offered, there were 
very few who wanted to make the exchange, 
and since then the two have been equal in value. 

There was a similar issue of paper money by 
the confederation and by the colonies individu- 
ally during the revolution, and a similar decrease 
in their value. The following is a New York 




i?^ TWO SHILLINGS, 

^•0/11$?''"^^^^'' .Vi;/^ rOR/C Currency. 1^^ 
"^^"^ ^^; ;- v<g. V ^^.::^X^X^X^<^^^•|>p)g• 

^ 'J'/, One Qiiarter of a Dollar. f^^ 

\Mf N E ^r TOR. K: [H^ 

^ Prialed \>y Sari'uei Lou/ic-n., m the Year M D" ' '. j^rII^ 



State Monet op TS.w^ Yokk 



bill of 1776. But this continental money was 
never redeemed. Pelatiah Webster said: ''We 



NATIONAL BANKS 415 

have suffered more from this cause than from 
every other cause or calamity. ' ' 

Besides the greenbacks and national bank 
notes (see page 416), the government has issued 
gold and silver certificates, each entitling the 
holder to receive so many gold or silver dollars 
from the treasury. They are not legal tender, 
but are freely received. 

The secretary of the treasury also has charge of 
the complicated and extensive national banking 
system. This is under the immediate direction 
of the comptroller of the currency, who issues an 
annual report. The first bank in the United 
States was chartered by the continental congress 
in 1781, and in 1791 congress established a Bank 
of the United States, with a charter for 20 years. 
At the end of that time, in 1813, congress refused 
to renew the charter, but, owing to the financial 
distress that ensued, in 1816 chartered another 
bank for 20 years. When the charter expired, 
its renewal was vetoed by both Presidents Jack- 
son and Tyler, and it has never been re-estab- 
hshed. 

The states, however, chartered banks, with 
power to issue bank notes, though it is doubtful 
whether these were not the ' ' bills of credit ' ' 
prohibited to the states (51). 

As there were thousands of these institutions 
each issuing its own bills, not only was counter- 



416 TREASURY DEPARTMENT 

feiting common, but it was not easy to know 
whether the bank was reallj able to redeem its 
biUs. New York had required its state banks to 
deposit with a state officer sufficient property, 
usually bonds, to furnish ample security for the 
payment of its notes. In 1863, when the gov- 
ernment needed money it adopted this New 
York system, put a prohibitive tax of lO^ upon 
the bills of state banks to prevent their issue, 
and established in the treasury department a 
bureau of currency in charge of a system of 
national banks, to use only notes printed at 
Washington and secured by United States bonds 
deposited in Washington. This furnished a 
market for bonds, made the bank-notes of the 
entire country uniform, and provided govern- 
ment guarantee for the redemption of the notes. 
The power to do it was assumed from sections 
27 and 28 of the constitution. 

National bank notes are not a legal tender (see 
page 408), but each national bank is required to 
receive the notes of every other, and they are 
accepted for all dues to the United States except 
duties on imports. 

A bank which does not issue notes is known 
as a state bank. 

The convenience of bank notes is everywhere 
recognized. If oranges bought in New York 
from Cahfornia could be paid for only in coin 



m 



NATIONAL BANKS 417 



e transportation would be costly and danger- 
ous, but a bank note for |1,000 weighs no more 
and is as easily concealed as a bank note for $1. 

There is however a chance of loss by theft, 
since whoever gets hold of the note can use it. 
In England, where bank-notes are never issued 
for less than $25, and when once paid into the 
bank are always destroyed and only fresh notes 
issued, it is common to keep the numbers of 
bank-notes as a precaution against theft. 

Payment is much more common, however, in 
the use of a bank check, a written request to a 
bank from a person who has money on deposit 
to pay it to another person, which is usually pay- 
able only to the order of the person to whom it 
is sent, can be used only by him, and if lost or 
stolen may be stopped— that is the bank requested 
not to pay it (see page 527). 

A draft (see page 197) or bill of exchange is a 
written request from one person to another, 
usually through a bank, directing the payment 
of money. When accepted, by writing across 
the face that word with the signature of the 
drawee, it has the effect, if at sight, of a check ;, 
if at a specified time after sight, of a note (see 
page 529). 

Money may even be sent for and paid through 
the telegraph office. 

Besides issuing bank-notes, congress borrows 



418 TREASURY DEPARTMENT 

money by authorizing the secretary of the treas- 
ury to sell bonds (see page 46), by which the 
government promises to pay the principal at a 
stated date, and meantime to pay quarterly inter- 
est at a certain percentage. Thus the bonds 
known as '' 1925 4's " are due in 1925, and mean- 
time bear interest at 4 ^ a year. 

These various issues require a great deal of 
printing, and to prevent counterfeiting this must 
be done on specially made paper from expensive 
plates and with precautions against theft. So 
the treasury department has a bui^eau of engrav- 
ing and printing. 

The power of congress to regulate commerce 
(28) is also exercised through the secretary of the 
treasury. Its most important apphcation is in the 
collection of duties on imports (see page 297) ; and 
the prevention of any levy of duty by the states 
upon articles imported from other states (48). 
It must not discriminate among ports (48). 

But it extends much farther. Under Jeffer- 
son it was even held to justify an embargo act 
that cut off all trade with foreign nations through 
the agency of American ships, and later a non- 
intercourse act that cut off trade with France 
and England. 

While trade between states is made free, there 
are some limitations. A state may pass a law 
establishing inspection of oil or food-products or 



REGULATION OF COMMERCE 419 

cattle, and' collecting the cost of inspection from 
the owners. But when Minnesota made a law 
requiring the inspection on foot, within the state, 
within 24 hours, of all fresh meat offered for 
market, the courts ruled it unconstitutional be- 
cause the intent w^as not to protect the citizens 
but to protect local butchers. A Missouri law 
requiring a license of dealers in wool not pro- 
duced in the state was declared unconstitutional 
because it did not apply to all dealers in wool. 
A Maryland law requiring license of all imports 
of foreign goods was declared unconstitutional 
because it had the effect of a duty on imports. 

American vessels have many privileges over 
foreign vessels. The latter are not allowed to 
engage in our coast trade. 

All vessels built and owned in this country 
must be duly registered on the collector's books. 

When a vessel leaves a port it must obtain a 
clearance, or certificate that the law has been 
compUed with in all respects. When it reaches 
another port it must be entered, — that is the cap- 
tain must report its arrival to the collector of the 
port, give a statement of the cargo, and show 
his clearance from the last port. 

Congress also passes many laws to render 
navigation safer, improving harbors, establishing 
light-houses and hfe-saving stations, requiring 
pilots, limiting the number of passengers, im- 



420 TREASURY DEPARTMENT 

posing quarantinej etc. The coast sUrvey is in 
this department, and produces maps of immense 
value. The superintendent receives the same 
salary as the treasurer, 16,000. 

So vast and complicated is the work of the 
treasury department that in 1901 Secretary Gage 
recommended the establishment of a new depart- 
ment to take the purely commercial business, and 
leave the strictly financial business for the treas- 
ury department. 

In his message of 1901 President Eoosevelt 
said: 

" There should be created a cabinet officer, to 
be known as secretary of commerce and indus- 
tries, as provided in the bill introduced at the 
last session of congress. It should be his province 
to deal with commerce in its broadest sense, 
including, among other things, whatever con- 
cerns labor and all matters affecting the great 
business corporations and our merchant marine. " 

France and Germany have each a minister of 
commerce, and England has a board of trade 
the president of which is a cabinet officer. 

The United States has already a department 
of labor, with a commissioner whose salary is 
$5,000. This would j)robably be incorporated in 
such a cabinet office. 



CHAPTER XLII 

DEPARTMENT OF THE INTERIOR 

The secretary of agriculture conducts experi- 
ments in farming and horticulture, and publishes 
for distribution among the people useful informa- 
tion on these and alhed subjects. Information 
obtained from consular agents in other countries 
is made available for use here. For the weather 
bureau see page 400. 

This work belonged to the department of the 
interior until 1862, when a commissioner of 
agriculture was appointed. The cabinet depart- 
ment was created in 1889. The secretaries have 
all been from the western states. 

The secretary of the interior executes the laws 
of congress relative to internal affairs, with such 
a variety of functions, that the principal depart- 
ments may best be treated separately. 

The work of this department was formerly 
done by the state department, but was com- 
mitted to a separate department in 1849. 

The only secretary of the interior from New 
York has been CorneMus N. BHss (1897-8). 

The commissioner of Indian affairs exercises 
general control over the Indians, including 

(431) 



422 INTERIOR DEPARTMENT 

treaties, supplies, education, etc. Congress has 
entire charge over Indians Hving in tribes, but it 
sanctions state laws forbidding the sale of in- 
toxicating liquors to Indians. When Indians 
break up their tribal relations they become sub- 
ject to the government of the state or territory 
in which they live. 

Commerce with Indian tribes is regulated by 
congress (28). It had been found hazardous to 
leave it to the states. 

The commissioner of the land office has general 
charge of the survey and sale of public lands. 
The power to dispose of public lands is granted to 
congress (77) and through land offices in the states 
and territories they have been rapidly opened up 
to cultivation (see page 356). Our system of 
surveys was devised by Thomas Hutchins, first 
geographer of the United States. The land is 
first divided by meridians and parallels 6 miles 
apart into townships (see page 26), thus locating 
land and furnishing boundaries for local govern- 
ment. Each township is divided into 36 sections, 
each of a mile square. In most of the western 
states one of these sections is granted to the 
state for school purposes, and government marks 
are placed at every half mile. The government 
seUs land in lots of 40 acres or multiples thereof. 
See page 356. 

The commissioner of pensions examines claims 



PATENTS AND COPYRIGHTS 423 

for pensions (from Latin pendere, to weigh), and 
grants them when found worthy. This is among 
the greatest expenditures of government, the 
pensions paid to soldiers of the war that ended 
in 1865, and their widows, amounting in 1901 
to 138 J milMons. 

The superintendent of the census is appointed 
temporarily every ten years to conduct the census 
of that year. 

The superintendent of public documents has 
charge of the distribution of pubHc documents 
among the people. 

The commissioner of patents has charge of the 
patent office. The right to grant patents is ex- 
pressly conferred on congress (33). 

To obtain letters of patent, the invention 
must not have been in use or on sale more than 
2 years before making appHcation ; and full de- 
scription, specifying the novel features claimed, 
with drawings and models, must be filed in the 
patent office, with a fee of $15. Examination 
is made of similar contrivances of which draw- 
ings, models, and specifications are on file, and 
if there is no conflict of claims and the object is 
patentable and desirable, letters patent are issued 
giving the inventor exclusive right to control its 
manufacture and sale for 17 years, which may 
be extended 14 years. The patented article must 
bear the wprd '' patented ", with the date of the 



424: INTERIOR DEPARTMENT 

patent. To make, use, or sell such an article 
without consent of the patentee is an inMnge- 
meiit (from Latin in and frangere. to break), and 
subject to heavy penalties. The final fee is |35. 

This office also registers trade marks, the dis- 
tinctive mark, device, or emblem that a manu- 
facturer affixes to his goods to identify them. 
The period is 30 years. 

Copyrights are granted by the librarian of con- 
gress. The term is 28 years, and may be ex- 
tended 14 years longer. Until recently any title 
could be copyrighted, but there are now some 
restrictions. A fee of 50 cents is required with 
the application, which must have a printed or 
type- written copy of the full title; and when the 
book, picture, map, or other article is published, 
2 copies must be sent to the hbrarian of con- 
gress, to complete the copyright. The copy- 
righted article must bear words in the following 
form: ''Copyright, 1901, by C. W. Bardeen"; 
and to print, sell, or hold any copy of the same 
is an infringment, subject to penalty. 

Since 1891 congress has permitted copyright on 
the same basis to citizens of foreign countries 
that grant us the same right, but the book must 
be printed from type set in the United States. 

The superintendent of the geological survey has 
charge of this government work, including the 
measuring and mapping of rivers, mountains, etc, 




BUREAU OF EDUCATION 425 



There is no national supervision of education, 
that matter being left entirely to state control. 
The words education and schools are not found in 
the national constitution. Yet besides its mili- 
tary and naval schools (see page 400), it makes 
appropriations for Indian schools. Before the 
constitution was adopted it gave by the ordi- 
nance of 1785 at least one section of every town- 
ship for education, and in 1862 it set apart 
public lands for agricultural colleges (page 323). 
In 1867 it established the bureau of education. 
The head of this, the commissioner of education 
is appointed to investigate into the condition and 
progress of the educational systems of the differ- 
ent states and territories. The annual reports of 
the commissioner have been the marvel of other 
nations for the fulness of their statistics and the 
usefulness of their generalizations. Other pub- 
lications, like the series of circulars of informa- 
tion, have proved of untold value. 

The anomaly is that this important office, 
filled as it is in 1901 by the man in the country 
best fitted for it, still carries the meagre salary 
of $3,000. 

There is also a commissioner of Indian affairs, 
salary |4,000, under whom there is a superin- 
tendent of Indian schools. 

Besides this government work under control 



4:26 INTERIOR DEPARTMENT 

of the cabinet, there are many national institu- 
tions that should be mentioned. 

The national library, opposite the capitol, is 
the largest in the country, and is in a building 
worthy of the country. The librarian, salary 
14,000, has charge of copyrights; and the library 
receives 2 copies of every copyrighted book (see 
page 424). 

The Smithsonian institution comes from a fund 
of more than half a milhon given to the United 
States in 1836 by an EngHshman named James 
Smithson, to found an institution for the ad- 
vancement and diffusion of knowledge. It now 
has a fund of a million, on which the govern- 
ment pays 6 ^ to the regents, who are the chief 
justice, the vice-president, and 3 senators ap- 
pointed by him, 3 representatives appointed by 
the speaker of the house, and 6 citizens elected 
by joint ballot of congress (compare page 318). 
The buildings are made the repository of the 
national museum, maintained by congressional 
appropriations. 

In 1901 Andrew Carnegie offered the national 
government 10 millions to establish a national 
university for post-graduate study and investi- 
gation, to be managed somewhat as the Smith- 
sonian institute is managed. 

There is a fish commissioner with duties corre- 



BUREAU OF FORESTRY 427 

spending in part with those of the forest pre- 
serve commission (see page 210). 

The protection of the forest reserves rests with 
the land office (page 422), the mapping and de- 
scription of their timber with the geological sur- 
vey (page 424), and the preparation of plans for 
their conservative use with the bureau of forestry 
in the department of agriculture, which is also 
charged with the general advancement of prac- 
tical forestry in the United States. President 
Eoosevelt recommended in 1901 that these vari- 
ous functions be united in the bureau of forestry, 
to which they properly belong. 

The estimates for the cabinet departments 
offered by the secretary of the treasury in 1901 
were as follows : 

state.: $ 2,446,328 

justice.. 6,917,330 

war 161,920,101 

navy , 100,701,122 

post-office 4,464,966 

treasury 156,484,925 

agriculture 5, 509, 540 

interior.. 161,710,535 

Total $600,154,847 

The estimate for the legislative department 
was 10 millions, and for the executive about 

$200,000. 



CHAPTER XLIII 

CONGRESS 

The president's offices are in his residence, the 
White House, and the executive departments all 
have buildings of their own. But when one 
speaks of the national government his mind pic- 
tures at once this building, not because the su- 




The National Capitol 

preme court chamber is here (see page 275), but 
because it is the seat of congress (from Latin con 
and gradi, to come together). For while the 

(428) 



COMPARISON WITH PARLIAMENT 



429 



legislative, the executive, and the judicial de- 
partments are coordinate, the legislative depart- 
ment is much the broadest and the most com- 
prehensive. The confederation thought it could 
get on with congress alone (see page 350) ; the 
English parliament is practically the entire gov- 
ernment. Our national system does not go so 
far as this, but it makes the legislative depart- 
ment by far the most powerful. 

Congress is based upon the state legislatures, 
and hence indirectly upon the English parliament. 
But its differences from parliament are many. 

Congress Parliament 

subject to the consti- 
tution ; 

power divided with 45 
state governments ; 

acts subject to veto; 

cabinet inehgible ; 



senators elected for 6 
years; 
presided over by 
elected vice-presi- 
dent; 

representatives S86 ; 

must be residents of 
their districts : 



supreme ; ^ 
power absolute; 2 

no longer so ; 

cabinet always mem- 
bers; 

house of lords heredi- 
ary, for life, 560; 
presided over by ap- 
pointed lord- chan- 
cellor ; 

members of house of 
commons, 670; 
may reside anywhere; 



iBi.32, 186. 



2Bi.l86. 



430 
term 2 years; 



CONGRESS 



term 7 years, unless 

dissolved ; 
no salary; 
of house of lords, 3 ; 



salary $5,000; 

quorum of senate a 
majority; 

quorum of house a ma- 
jority; 

each house determines 
election of its own 
members. 
Congress differs from the legislature mainly 

in the following particulars : 



of house of commons, 

40; 
referred to courts of 

law;i 



has only delegated 
powers ; 

two houses elected on 
different bases ; 

appropriation bills must 
originate in house 
of representatives; 

entire bill must be ve- 
toed if any; 

to pass over veto re- 
quires I of those 
voting ; 
yea and aay vote re- 
quired ; 

salary 15,000; 

iBi.186. 



has all powers not 
specifically denied ; 

elected on the same 
basis ; 

may originate in either 
house ; 

specific items in appro- 
priation bills may 
be vetoed ; 

requires f of all mem- 
bers elected ; 

manner of voting not 
specified ; 
salary |1,500; 



COMPARISOlSr WITH LEGISLATURE 



431 



house 
386 members; 
must be 25 years old; 
7 years a citizen ; 
an inhabitant of the 
state ; 
newly elected house 
serves after a year ; 

senate 

90 members ; 
elected by states ; 

term 6 years; 
change of \ every 2 

years ; 
must be 30 years old ; 

9 years a citizen ; 
no such restriction; 

meets 1st Monday in 

December; 
appoints its own 

committees ; 
in impeachment acts 

alone. 



150 members; 
no requirement ; 
no requirement ; 
no requirement ; 

serves at next session ; 

senate 

150 members; 
elected by popular 

vote; 
term 2 years; 
complete change every 
2 years; 
no requirement; 
no requirement; 
members of city gov- 
ernments ineligible; 
meets 1st Wednesday 

in January ; 
It. gov. appoints com- 
mittees ; 
is associated with 
court of appeals. 



For difference in powers, see chapter XXXIV. 

Congress meets every year on the 1st Monday 
in December (16). The congress which met for 
the first time Dec. 2, 1901, is the 57th congress. 



432 CONGRESS 

Since the 1st congress met in 1T8T, the ordinal 
member of any congress may be found by sub- 
tracting 1787 from the odd year in which it 
meets, and dividing by 2. Thus, ^^'^^"^^^^ = 57. 
On the other hand, the year of the first' session 
of each congress may be found by adding twice 
the ordinal number to 1787. Thus, (57 X 2) + 
1787 = 1901. 

The first session, opening in the odd year, is 
unlimited, and hence is called the long session. 
The 2d session, opening in the even year, must 
close at midnight of the next March 3, when a 
new congress comes into power. Hence it is 
called the short session. 

As a matter of fact congress adjourns on the 
noon of March 4, and often turns back the hands 
of the clock, so that the real adjournment is still 
later. But all laws signed after midnight of 
March 3 are dated March 3. 

As to membership, each house is the judge of 
the elections, returns, and qualifications of its 
own members (17^ 150). 

Parliament exercised this power till 1867, 
when it was transferred to the common law 
judges. 

Congress has the further power to alter the 
regulations for election of senators and repre- 
sentatives except as to the place of choosing sen- 
ators (15, 149). 



MEMBERSHIP; QUORUM 433 

Each house may not only refuse to admit duly 
elected members whose character unfits them, 
but it may punish admitted members for disor- 
derly behavior, and by a vote of f expel a 
member (18, 150). 

This power has always been exercised by the 
house of commons. The United States senate 
expelled Blount of Tennesee in 1Y97 ; and Bright 
of Indiana in 1863, the latter for writing a letter 
addressed to Jefferson Davis as '^president of 
the confederation of states". 

The supreme court has also decided that con- 
gress has power to punish for contempt. 

A quorum is constituted by a majority of either 
house (17^ 150), but a smaller number may ad- 
journ from day to day, and may be authorized to 
compel the attendance of absent members. ' 

By a rule of the house, the speaker and 15 
members may compel attendance. 

In the house of commons of nearly TOO mem- 
bers 40 constitute a quorum. To pass a bill Ohio 
and Illinois require a majority of all members 
elected. For New York requirements see page 
237. 

The house of representatives has, by the appor- 
tionment of 1901, 386 members. It takes 194 to 
make a quorum, and if just this number were 
present, it would require 98 to pass a bill. Un- 
der the rule of the house of commons 21 could 



434 CONGRESS 

pass it, while under the Ohio rule it would re- 
quire 194 to pass it. 

Until the 51st congress, it had been customary 
not to count as present members who refrained 
from voting, thus allowing a man to debate and 
yet by refusing to vote be '' constitutionally ab- 
sent ". Speaker Eeed counted all members who 
were present as part of the house, whether they 
voted or not, thus often making a quorum which 
otherwise would have been lacking ; and was sus- 
tained by the supreme court. This is now" the 
rule. 

The offtcers of each house are chosen by its 
members, except that the vice-president presides 
in the senate (see page 380). 

The most important officers of each house 
next to the presiding officer, are : 

a clerk (called in the senate a secretary, who 
officially communicates the proceedings of each 
house ; 

a, sergeant-at-arms, to preserve order ; 

He has the custody of the mace, an ebony re- 
production of the Roman fasces, the bundle of 
rods surrounding an axe, carried by the lictors 
before a chief magistrate, with which criminals 
were scourged and beheaded. A picture is 
given on the cover of this book. This in ex- 
treme cases he carries into a throng of disorderly 
members, and he moves it from its place when 



OFFICERS; RULES 435 

the house goes into committee. He is also the 
treasurer of the house. ^ 

a door-keeper, who has care of the chamber ; 

a postmaster, who has charge of the mail; 

a chaplain, who opens each daily session with 
prayer. 

Rules for its own proceedings are made by each 
house (18, 150). These are subject only to the 
express provisions of the constitution. 

In voting the English custom of division is 
sometimes used, where the ayes go to one side of 
the house and the noes to the other. 

A journal of its proceedings must be kept by 
each house (19, 151). 

This not only preserves a record for future use, 
but imposes a check upon members, who might 
otherwise say in the heat of passion what they 
would not like to have go on record. 

At the request of a fifth of those present the 
yeas and nays must be entered on the journal 
(19^ 178). This is to show constituents how 
their members voted, but has been used to delay 
legislation, the process consuming much time. ^ 

In the 51st congress the speaker refused to 
entertain dilatory motions or to recognize mem- 
bers he thought about to make them. 

It is provided that the journal may omit such 
parts of the proceedings as may in the judgment 

iBi.127. 2Bi.l39, 



436 CONGRESS 

of the house require secrecy (19^ 151), as for in- 
stance in time of insurrection or invasion, when 
such pubhcation would assist the enemy. 

The proceedings of the senate in executive ses- 
sion (see page 475) are kept secret. ^ 

Adjourument of either house during a session 
of coDgress is forbidden for more than 3 days 
without consent of the other, or to any other 
place than that in which the houses are sitting 
(20, 151). When the two houses can not agree 
as to adjournment 'the term may be fixed by the 
president. 

An oath or affirmation to support the constitu- 
tion is required of all members (82, 280; see 
page 395). 

The salary of members of congress is fixed by 
themselves, and has risen from |6 a day in 1789 
to 15,000 a year, besides mileage of 10 cts. a 
mile each way by the nearest route for each 
session. 

From 1871 to 1874 the salary was 17,500 a 
year. 

It is paid from the national treasury (24, 146), 
instead of by the states from which they are ac- 
credited, as under the confederation. 

A member may not hold any other civil office 
imder the United States ; nor may he by resign- 
ing take an office created or the emoluments of 
~~^Bi.l01. 



NATIONAL LAW MAKING 437 

which have been increased during the term for 
which he was elected (22^ 147 ; see page 395 ). 
Otherwise the members might bargain among 
themselves to create large-salaried offices to 
which they could get themselves appointed. 

Privileges are granted congressmen of freedom 
from arrest during or on their way to or from 
the sessions ; and also from punishment for any- 
thing said in the house (21, 152). 

The former is to prevent attempts to control 
legislative action by keeping members away; 
the latter to secure freedom in debate. As al- 
ready seen (see page 433), undue license in debate 
may be punished by one's fellow-members. 

The process of law-making in congress is in 
most respects the same as that in the legislature 
(see pages 238^-243), with these differences: 

bills are introduced in both houses by the 
method of the New York senate, not by that of 
the assembly (page 238) ; 

bills are referred to a committee in the house 
before the first reading, and in the senate after 
the secoud;^ 

amendments may be proposed at any time, 
instead of only on second reading (page 239) ; 

bills may be repassed over the president's veto 
by a f majority of those voting, instead of by a 
f vote of all members elected (page 237); but 

^i.lo3. 



438 CONGRESS 

a yea aiad nay vote is required, which is not 
specified in the legislature. 

There is special provision for orders, resolu- 
tions, and votes, except to adjourn, which must 
be presented to the president and pass through 
the same procedure as in case of bills (25). This 
is to prevent congress from evading the presi- 
dent's power of veto by putting a bill into some 
other form. 

The president does not have, like the gover- 
nor (see page 242), power to veto certain parts of 
an appropriation biU while approving the rest. 

The work is even more in the hands of com- 
mittees than in the legislature (see page 245). 
The committees are appointed at the opening, of 
the first session of each congress, and sit through 
both sessions. ^ The senate designates not only 
the committees but the chairman of each. ^ 

The chairman of the ways and means commit- 
tee of the house is, as in the assembly (see page 
247), the leader of the house, and corresponds 
most nearly with the English chancellor of the 
exchequer, though without any relation to the 
secretary of the treasury. ^ 

'' Some committees, such as those on naval 
and military affairs, and those on the expendi- 
ture of * the several departments, deal with ad- 
ministration rather than legislation. They have 

1 B i.loa. 2 B i.52. 3 B i.l46. 173, 174. 



LEGISLATION BY COMmTTEES 439 

power to summon the officials of the depart- 
ments before them, and to interrogate them as 
to their methods and conduct. Authority they 
have none, for officials are responsible to their 
chief, the president ; but the power of question- 
ing is sufficient to check if not to guide the 
action of a department, since imperative statutes 
may follow, and the department, sometimes de- 
siring legislation, and always desiring money, 
has strong motives for keeping on good terms 
with those who control legislation and the purse. 
It is through these committees chiefly that the 
executive and legislative branches of govern- 
ment touch one another. Yet the contact, al- 
though the most important thing in a govern- 
ment, is the thing which the nation least notices, 
and has the v^cantiest means of watching. ' ' ^ 

' ' After a bill has been debated and amended 
by the committee it is reported back to the 
house, and when that committee is called is 
taken up in its order. One hour is allowed to the 
member whom his fellow committee-men have 
appointed to report. He seldom uses the whole 
of this hour, but allots part of it to other mem- 
bers, opponents as well as friends, and usually 
concludes by moving the previous question (see 
page 240). This precludes subsequent amend- 



iBi.154, 158. 



440 CONGRESS 

ments and leaves only an hour before the vote is 
taken."! 

The speaker recognizes only such members as 
the committee have selected to speak. 

From the fact that the work of congress is so 
largely done in committees there is, as in the 
legislature (see page 248), comparatively httle 
scope for oratory in debates^. Some find this a 
matter for congratulation. "It is safe to say 
that the harm which has been done by laws 
based on unemotional reasoning is but a drop in 
the bucket compared with what has been done 
by laws based on unreasoning emotion. ' ' ^ 

The law-making power of congress is however 
radically different from that of the legislature, 
in that it possesses only those powers specifically 
given to it, while the legislature possesses all 
powers not specifically denied (see page 336). 

The constitution provides (43) that congress 
shall have power to make all laws necessary and 
proper to carry into execution the powers vested 
by the constitution in the government, or in any 
department or ofiicer thereof. Patrick Henry 
called this ' ' the sweeping clause ' ' by which con- 
gress was to overthrow the nation, but Madison 
said 4 that without this the constitution would 
have been a dead letter. Chief Justice Marshall 



1 B i.l55. ' B i.l41 ; ii.268 ; Hadley, pages 93-95. 
^Hadley, page 55. * Federalist, xliv. 



THE SWEEPING CLAUSE 441 

says: ^'A power vested carries with it all those 
incidental powers which are necessary to its 
complete and efficient execution;" and Justice 
Story:! '' It would be almost impracticable if it 
were not useless, to enumerate the various in- 
stances in which congress, in the progress of the 
government, has made use of incidental and 
implied means to execute its powers. " It would 
have been impossible to numerate affirmatively 
all the laws that congress might pass. As it is, 
more than half of the original constitution is 
devoted to congress (see pages 342-350). 

If only powers specifically enumerated were 
permitted, congress could not have purchased 
Louisiana, or annexed Texas or Hawaii, or ac- 
quired Porto Eico, or passed the embargo act of 
1807, or mad^ grants of lands to agricultural col- 
leges, not to speak of the recent relations this 
country has assumed toward Cuba and the 
Philippines. 

Chief Justice Chase maintained that congress 
could not pass a law for payment in greenbacks 
of debts contracted before they were made legal 
tender, on the ground that it impaired a contract 
(51). It also in a sense deprived a person of 
property (88). Yet such a law was passed be- 
cause at the time it seemed a necessity (see page 
413). 

1 Story, § 1258, 



U2 



POWERS OF CONGRESS CLASSIFIED 



finance 

1. to raise money 

1. by levying (26), p. 413, f "^.Pg™* ^^^ 

ia. direct taxes, 398, debts (,b),il3, 

] b. imposts, 296, for J ^; ^0"^™°^ ^e- 

( c. excises, 296, ^ ^ence, 339, 

L 2. by borrowing (27), 413 ; % general wel- 

I rare ooo '^ 

2. to regulate commerce (28), 418, 
(1. foreign 419, 

-? 2. interstate 418, 
( 3. with Indians 421; 

3. to regulate state imposts or duties (52), 296 ; 

4. to coin money and regulate its value (30), 

407; 

5. to establish weights and measures (30), 406 ; 

6. to establish post-offices and post-roads (32), 

401; 

7. to issue patents and copyrights (33), 423 ; 

8. to enact uniform bankruptcy laws (29), 524 
territory 

9. to control District of Columbia (42), 360 

10. to dispose of territory (77), 355 ;> 

11. to admit states into the union (76), 359 
elections 

12. to make uniform rules for naturahzation 

(29), 155; 

13. to regulate elections to congress (15), 432; 

14. to fix the time of choosing presidential 

electors (56), 366; 



POWERS CLASSIFIED 443 

15. to elect a president when electors do not 

have a. majority (95), 367; 

16. to provide for succession to the president 

(58), '370; 
IT. to regulate the appointment of inferior 
officers (62), 390; 

18. to propose amendments to the constitution 

(79), 339; 
war 

19. to declare war (36), 468; 

20. to grant letters of marque (36), 399; 

21. to make rules regarding captures (36), 474; 

22. to raise and support armies (37), 397; 

23. to provide and maintain a navy (38), 400 ; 

24. to make rules for army and navy (39), 398; 

25. to call out militia (40), 193; 

26. to arm and discipline the militia (41), 193; 
justice ^ 

27. to establish inferior courts (34), 278; 

28. to provide for appellate jurisdiction (68), 

275; 

29. to prescribe how the acts of a state shall be 

proved (72), 269; 

30. to define and punish crimes, 544; 

1. piracies (35), 552; 

2. felonies on the high seas (35), 552; 

3. international offences (35), 552 ; 

4. counterfeiting (31), 553; 

31. to declare punishment of treason (71), 546; 

32. to direct the place of tral for crimes not 

committed in any state (69), 361. 



\ \ - 




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mm ' '^^fll^^^l 




■T'^v'fl 




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1 ^_-^:l: - 



CHAPTER XLIV 



THE HOUSE OF REPRESENTATIVES 

Eepresentatives are the only officers in the 
national government elected directly by the 
people (3), and it is by re-electing them or refus- 
ing to do so that the people show whether they 
approve o^ the action of congress. As they 
serve for only 2 years this judgment is speedy, 
and injurious legislation can be soon corrected. 

' ^ Senators ' ' are always spoken of under that 
name, so that the term '' congressmen", though 
properly belonging to both houses, is used only 
of members of the house, as in England ' ' mem- 
ber of parliament ' ' always means member of 
the house of commons. ^ 

By the articles of confederation delegates from 
all the states but 2 were chosen by legislatures. 

Apportionment of members among the states 
is made according to the population of the last 
decennial census, excluding Indians not taxed 
(51, 100, 139, U2). 

The present apportionment is given on page 
561. The number has varied from 65, in 1789, 
and from 105 in 1793 on a basis of 1 for every 



iBi.144. 



(445) 



446 HOUSE OF REPRESENTATIVES 

33,000 inhabitants, to the present number of 
386, on the basis of 194,182 inhabitants. 

Each state must be allowed at least 1 repre- 
sentative (5). 

Nevada would otherwise not be entitled to a 
representative. 

The provision adding to the population ''| of 
all other persons" referred to slaves, and has 
been made inoperative by amendments (98, 99, 
100). Eecent legislation in some of the southern 
states has practically disfranchised most of the 
negroes, but the apportionment of 1901 did not 
reduce the representation as required (100). 

The provision was a concession to the slave- 
holding states; and as a compensation it was 
provided that direct taxes should be apportioned 
in the same way (51 ; see page 298). But as 
direct taxes w^ere practically never levied, the 
south was the gainer. 

Congressional districts are required by a law of 
congress passed in 1842. 

The party in power at the time the state is 
divided into districts is tempted so to divide it 
that as many districts as possible may have a 
majority of voters belonging to that party. This 
was so flagrantly done in Massachusetts under 
Gov. Gerry that the district formed was called a 
gerrymander, and such unjust division has been 
called gerrymandering. The map of congres- 



APPORTIONMENT 447 

sional districts in New York on page 582 shows 
many irregular outlines, but the object was so 
to divide up the counties as to make districts 
nearly equal. 

CongressDien-at-large are elected when the new 
apportionment has given more members to a 
state, and the new division into districts has not 
yet been made. 

By the apportionment of 1882 New York was 
allowed an additional congressman; and as the 
legislature did not redivide the state that year, 
this member was elected on the general state 
ticket. 

The qualifications of a member required by the 
constitution are that he be 25 years of age, 7 
years a citizen of the United States, and an in- 
habitant of the. state from which he is elected (4). 

A man may become a member of parliament 
at 21, but in France and in Holland a man does 
not become of age till he is 25. 

While not required by the national constitu- 
tion, most state constitutions require residence 
in the district. ^ 

It is not always required in large cities that 
elect several members. Thus in the 48th con- 
gress 0. B. Potter and S. S. Cox were elected 
from districts in New York in which they did 
not reside. 



B i.384. 



448 HOUSE OF REPRESENTATIVES 

Residence is not required in England, where a 
parliamentary district may elect its member 
from any part of the country. Bryce ascribes to 
this provision in America much of the low 
level of statesmanship in the house, and espe- 
cially the lack of effective leadership. ^ He says : ^ 

'' The mischief is two-fold. Inferior men are 
returned, because there are many parts of the 
country which do not grow statesmen; where 
nobody, or at any rate nobody desiring to enter 
congress, is to be found above a moderate level 
of political capacity. And men of marked abil- 
ity and zeal are prevented from forcing their way 
in. Such men are produced chiefly in the great 
cities of the older states. There is not room 
enough there for nearly all of them, but no other 
doors to congress are open. Boston, New York, 
Philadelphia, Baltimore, could furnish six or 
eight times as many good members as there are 
seats in these cities. As such men cannot enter 
from their place of residence, they do not enter 
at all, and the nation is deprived of the benefit 
of their service. Careers are moreover inter- 
rupted. A promising pohtician may lose his seat 
in his own district through some fluctuation of 
opinion, or perhaps because he has offended the 
local wire-pullers by too much independence. 
Since he cannot find a seat elsewhere, as would 

1 B i.l41, 148, 182, 514 ; ii.67. 21 190^ 453^ 



REQUIREMENT OF RESmENCE 440 

happen in England, he is stranded ; his pohtical 
hfe is closed, while other young men inclined to 
independence take warning from his fate. 

*' The fact is, that the Americans have ignored 
in all their legislative as in many of their ad- 
ministrative arrangements, the differences of 
capacity between man and man. They under- 
rate the difficulties of government, and overrate 
the capacities of the men of common sense. ' ' 

Another disadvantage is that the member, be- 
ing elected for the district of which he is resident 
feels himself bound to make its interests para- 
mount ; ^ to secure the local legislation he wants 
he is forced to resort to log rolling (see page 250). 

Hadley says (page 79): *' Under the current 
system of political ethics there is in fact a direct 
antagonism between the theory of economics 
and the practical working of representative gov- 
ernment. The economist shows how largely the 
independent action of the parts may be made 
to conduce to the collective good of the whole. 
The practical working of representative govern- 
ment, making each member primarily responsi- 
ble to his district — or one might better say to the 
members of his own party in his district — means 
that the collective action of the whole is made a 
tool to subserve the separate wants of the parts, 
even though the satisfaction of those wants may 

iBi.187, 521.. 



460 HOUSE OF REPRESENTATIVES 

antagonize the general interest of the nation. 
The history of every tariff bill, and of every 
river and harbor bill affords illustrations of this 
tendency of our representative system. The 
economist is at a disadvantage, in influencing 
members of the legislature, because his ends are 
different from theirs. He is trying to pursue 
collective interests ; they are trying — and under 
the existing condition of things, necessarily try- 
ing — to balance, to compromise, or in some 
fashion to reconcile divergent ones. ' ' ^ 

The election of members is by vote of those 
who have the qualifications necessary for the 
most numerous branch of the state legislature 
(3, 139). 

Tacaucies are filled for the remainder of the term 
at special elections ordered by the governor (6). 

The speaker is the only officer chosen from the 
members. The salary is S8,000. 

The English house oftcommons chooses its 
speaker, but the approval of the king is required. 

The clerk is usually chosen from ex-members. 
Owing to delay in choosing the speaker, the clerk 
presided Dec. 3, 1855 to Feb. 2, 1856, and 9 weeks 
in 1859-60. 

Only one member from New York has been 
appointed speaker, John W. Taylor, who served 
1820-21, and 1825-27. 

1 See also page 144. 



POWER OF THE SPEAKER 451 

In rank the speaker stands next to the presi- 
dent, and on a level with the justices of the 
supreme court. Bryce (i.l36, 137) is doubtful if 
he should not be called the first political figure 
in the nation, with an influence in ordinary times 
superior to the president's. 

He differs from the speaker of the house of 
commons in that he is a party leader, and does 
not aim at the impartiality that characterizes the 
English speaker. ^ Compare page 246. 

The committees are appointed by the speaker; 
and as the control of legislation in congress or in 
the legislature is in the hands of these commit- 
tees (see page 245), it is manifest that his power 
is enorhious. 

In debate the speaker is all-powerful. He may 
recognize whom he chooses of those who rise to 
speak ; he can advance or postpone bills in a way 
to determine their fate (see page 440). ^ 

In general the house is coordinate with the 
senate in legislation, but it has three exclusive 
powers : 

1. to originate bills for raising revemie (23) ;-^ 

2. to originate impeachments (7^ 13^ 14, 65 ; see 
page 230) ; 

3. to elect a president of the United States 
when the electors fail to do so (95 ; see page 367). 

This power was exercised in 1801 and in 1825. ^ 
1 B i.l34, 135. 2Bi.l3o. 3Bi.99, 175. *Bi.l26. 



CHAPTER XLV 

THE UNITED STATES SENATE 

The constitution of the senate records the 
most remarkable of the many compromises that 
were necessary to the formation of the constitu- 
tion, in providing that every state, large and 
small alike, shall be represented by 2 senators. 

By the census of 1900 Nevada has a population 
of 42,335 and New York of more than 7 mil- 
lions; yet each has equal representation in the 
senate. This extends to more than law-making. 
The senate confirms appointments and ratifies 
treaties ; it gives every state 2 members of the 
electoral college; it may as in 1837 elect a vice- 
president, while the election of president if by 
the house of representatives is by states, with 
an equal vote for every state. ^ 

The purposes for which the senate was created, 
are thus set forth, by Alexander Hamilton, ^ 

1. To conciliate the spirit of independence in 
the several states, by giving each, however 
small, equal representation with every other, 
however large, in one branch of the national 
government. 

1 B i.l20, 182. 2 Federalist, Ixvi ; B i.l08. 

(453) 



454 UNITED STATES SENATE 

2. To create a council qualified, by the moder- 
ate size and the experience of its members, to 
advise and check the president in the exercise of 
his powers of appointing to office and concluding 
treaties. 

3. To restrain the impetuosity and fickleness 
of the popular house, and so guard against the 
effects of gusts of passion or sudden changes 
of opinion in the people. 

4. To provide a body of men whose greater 
experience, longer term of membership, and 
comparative independence of popular election, 
would make them an element of stability in the 
government of the nation, enabling it to main- 
tain its character in the eyes of foreign states, 
and to preserve a continuity of policy at home 
and abroad. 

5. To establish a court proper for the trial of 
impeachments, a remedy deemed necessary to 
prevent abuse of power by the executive. 

The phrase ' ' comparative independence of 
popular election ' ' show^s how important it seemed 
to have this second house of the legislature 
elected in such a way as to give it a character 
distinct from the other. The Enghsh house of 
lords is hereditary ; the Italian senate is composed 
of persons nominated by the king; France ap- 
points her senators by indirect election; the 
Prussian house of lords is partly nominated, 



455 

partly hereditary, partly official, partly elective. ^ 

The convention decided to distinguish between 
the two bodies by making the members of the 
senate (1) fewer, (2) elected by the state legisla- 
tures instead of by the people, (3) for 6 years 
instead of 2, and (4) with a requirement of 30 
years of age instead of 25, and 9 years a citizen 
of the United States instead of 7 (10). 

The number of senators is limited by the num- 
ber of states, and is not likely to exceed 100, 
while the English house of lords numbers about 
560, the Russian 432, and the French senate 300. ^ 

It is provided that the terms of only J of the 
senators expire each two years (9), so that there is 
comparative permanence. The house might be 
entirely changed by a single election, but to make 
an entirely new senate would require 3 elections. ^ 

Thomas H. Benton was a senator 30 years, and 
John Sherman 32 years. 

The method of election was fixed by congress 
in 1866, providing that when a senator is to be 
chosen each house of the legislature shall first 
vote separately on the 2d Tuesday after organiza- 
tion or after notice of vacancy has been received ; 
on the next day they meet together and if the 
choice of the houses shall prove to be the same 
the person shall be declared elected; if it does 
not prove to be the same, both houses shall pro- 

iBi.94. 2Bi.93. ^BiAQ2, 



456 UNITED STATES SENATE 

ceed to a joint vote, a majority of each house 
being present. ^ If no person receives a majority, 
the joint assembly must meet and cast at least 
one vote a day during the entire session. 

If vacancies happen during a recess of the 
legislature the governor appoints a senator to 
serve until the next meeting of the legislature 
(9). But if the vacancy exists through inability 
or refusal of the legislature to elect, the ap- 
pointee of the governor will not be recognized by 
the senate, as it is not believed that the constitu- 
tion gives such power to the governor. 

For the first few months of the 1st congress 
New York had no senators, through disagree- 
ment of the houses of the legislature. 

The presiding officer is the vice-president, and 
his power is much more limited than that of the 
speaker of the house. He has no vote, except 
in case of equal division ; the standing commit- 
tees are chosen by the senate ; and his authority 
in questions of order is limited, the decision be- 
ing held to belong to the senate itself. ^ 

The senate elects a president pro tempore who 
presides in the absence of the vice-president, and 
if the office of vice-president becomes vacant 
receives the same salary as the vice-president. 
Of course he does not become vice-president, for 



EXECUTIVE POWERS 457 

no officer of the United States can be a member 
of either house of congress (22). 

In the Enghsh house of lords the presiding 
officer is the lord chancellor, or some other officer 
appointed by the crown. 

The executive powers of the senate were con- 
sidered by the f ramers of the constitution exceed- 
ingly important, as we having already seen in 
the quotation from Hamilton (see page 453). In 
advising and checking the president in the mat- 
ter of appointments and treaties, it has proved 
so powerful that Bryce thinks the evils almost 
commensurate with the benefits.^ He says: 

'' Hamilton went so far as to speak of the 
national executive authority as divided between 
two branches, the president and the senate. 
These executive functions are two, the power of 
approving treaties, and that of confirming 
nominations to office submitted by the presi- 
dent. "^ 

'' The senate may appear in some poiuts to re- 
semble the English privy council of the seven- 
teenth century, because it advises the executive ; 
but there is all the differences in the world be- 
tween being advised by those whom you have 
yourself chosen and those whom election by 
others forces upon you. So it happens that the 
relations of the senate and the president are sel- 

iBi,103, 106, 109, 120, ^ B 1403, 



458 UNITED STATES SENATE 

dom cordial, much less confidential, even when 
he and the majority of the senate belong to the 
same party, because the Senate and the president 
are rival powers jealous of one another. "^ " No 
European state, no British colony, entrusts to 
an elective assembly that direct participation in 
executive business which the senate enjoys. "^ 

In the case of treaties (see page 474:) the house 
sometimes has considerable power through its 
control over appropriations. When Louisiana, 
Florida, and California were purchased, the 
presidents were careful to make sure beforehand 
that the house would appropriate the necessary 
money ; in the purchase of Alaska, however, the 
house was not consulted. Congress authorized 
the admission of Texas either by treaty or upon 
the acceptance of certain terms specified, and it 
was admitted upon accepting those terms — that 
is without exercise of the treaty-making power. 
Hawaii was annexed by joint resolution of con- 
gress, but Porto Eico and the Philippines were 
secured by treaty. 

The judicial power of the senate, like that of 
the New York senate, consists in its trial of 
cases of impeachment (see page 230); but it has 
greater power, not being associated with the 
supreme court, except that when the president 

iBi'.91. ^Bi.llO. 



JUDICIAL POWER 459 

is under impeachment the chief-justice pre- 
sides (13). 

Had Andrew Johnson been convicted, the 
president pro tem of the senate would have be- 
come president,- yet he insisted on voting (see 
pages 230, 231). 

Otherwise the provisions are the same as in 
New York (14, 218), the house of representa- 
tives making the impeachment (7). The presi- 
dent may not pardon those convicted by impeach- 
ment (61). 

The constitution reads, ' ' The president, vice- 
president, and all civil officers of the United 
States shall be removed from office on impeach- 
ment for and conviction of treason, bribery, or 
other higher crimes or misdemeanors " (65). 

The question has arisen whether congressmen 
are civil officers, and thus liable to impeach- 
ment ; but by civil office the constitution seems 
(22) to mean an office not miUtary which con- 
gress has the power to create ; the president is 
said (64) to commission all the officers of the 
United States, and he certainly does not commis- 
sion congressmen. So though the first case of 
impeachment was brought against Senator 
Blount in 1797, and he was expelled from the 
senate (18), it was then decided that he could 
not be impeached (see page 433). 

There have been 6 other cases of impeach- 



460 UNITED STATES SENATE 

ment, 4 against judges, 1 against a cabinet 
officer, and 1 against President Andrew John- 
son. Only 2 secured conviction — both against 
judges, one for drunkenness, and one for aiding 
the rebellion. 

Brjce says^ impeachment is the heaviest piece 
of artillery in the congressional arsenal, but be- 
cause it is so heavy is unfit for ordinary use. It 
is like a hundred-ton gun, which needs complex 
machinery to bring it into position, an enormous 
charge of powder to fire with, and a large mark 
to aim at. It is however the only means by 
which a federal judge can be got rid of. 

The legislative powers of the senate are coor- 
dinate with those of the house, except that it 
may not originate bills for raising revenue (23). 

This is a traditional distinction, the English 
house of commons having zealously guarded this 
prerogative. 2 There is a reason for it in con- 
gress, the members of the senate not represent- 
ing equal numbers of citizens. ^ In New York 
where senate and assembly are equally repre- 
sentative, no distinction is needed or made (153). 

Bryce thinks the senate performs well its duty 
restrain the impetuosity and fickleness of the " to 
popular house " (see page 454). * 

M. 208, 106. 2Bi.i71. 3Bi.468. ^Bi. 110, 120. 



UNITED STATES SENATORS FKOM NEW YORK. 

ELECTKD. ELECTED. 

Hiilip Schuyler 1789 RufusKing 1789 

Aaron Burr *1791 Rufus King *1795 

Philip Schuyler *1797 John Lawrence 1796 

Johns. Hobart , 1798 John Armstrong *1801 

Wm.North 1798 De Witt Clinton 1802 

James Watson 1798 John Armstrong 1803 

Gouveraeur Morris 1800 John Smith 1804 

Theodorus Bailey *1803 John Smith *1807 

Samuel Mitchell 1804 Rufus King *1813 

Obadiah German *1809 RufusKing *1819 

Nathan Sanford *1815 Nathan Sanford *1825 

Martin Van Buren *1821 Wm. L. Marcy *1831 

Martin Van Buren *1827 Silas Wright, Jr 1833 

Charles E. Dudley 1829 Silas Wright. Jr *1837 

Nathaniel P. Talhnadge *1833 Silas Wright, Jr *1843 

Nathaniel P. Tallmadge *1839 Henry Foster 1844 

Daniel S. Dickinson *1845 John A. Dis 1845 

Hamilton Fish *1851 Wm. H. Seward *1849 

Preston King *1857 Wm. H. Seward *1855 

Edwin D. Morgan. . . i *1863 Ira Harris *1861 

Reuben E. Fenton *1869 Roscoe ConkUng *1867 

Francis Keman *1875 Roscoe Conkling *1873 

Thomas C. Piatt *1881 Roscoe Conkling *1879 

Warner Miller 1881 Elbridge G. Lapham 1881 

Frank Hiscock *1887 Wm. M. Evarts *1885 

EdwardMurphy *1893 David B. HUl *1891 

Thomas C. Piatt 1897 Chauncey Depew 1899 

■ • 

* Stars indicate the close and commencement of full terms after expira- 
tion of a first term. Names between the stars are of senators appointed or 
resigned or elected to fill vacancies. 

(461) 



CHAPTER XLYI 

INTERNATIONAL LAW 

We have seen that New York is a sovereign 
state, except so far as it united with the other 
states in conferring certain powers upon the 
national government; and that the United 
iStates is a sovereign state, so far as pertains to 
the powers entrusted to it, having no superior. 

We come now to relations that are compara- 
tively indefinite. The boundary of power be- 
tween New York and the United States is de- 
fined by the national constitution, and the power 
of each within its limits is absolute ; each may 
make laws and compel obedience. 

But the relations of the United States with 
foreign countries are defined only by treaties, 
and these are with individual nations — never 
international. International la^v is not, Hke 
other law, the expression of a controlKng will 
(see page 252). There is no international con- 
stitution, there is no international legislature, 
there is no international executive, there is no 
international judiciary. If the laws of one 
nation are violated by another, it can often obtain 
redress only by declaring war (see page 469). 

(462) 



ITS BASIS 463 

There has been much effort to estabhsh arbitra- 
tion (see page 256), but the conference of nations 
at the Hague in 1899 was followed by wars of 
England with South Africa and of the United 
States with the Philippine insurgents. 

Yet there is considerable basis and force to 
international law, and though it is comparatively 
of modern origin its foothold is secure. To the 
Greeks all foreigners were '' barbarians ". The 
spirit of the day is to extend the brotherhood of 
man to the brotherhood of nations, and to recog- 
nize that our own security and prosperity are 
largely dependent upon the security and pros- 
perity of the other nations of the world, and 
upon free and friendly intercourse with them. 

International law, or the law of nations, ''is 
the system of rules regulating this intercourse 
between nations and their respective subjects, 
as acknowledged by the civilized states of the 
world. ' ' 

Thus it is agreed generally among nations, and 
between each and most of the rest by treaties, 
that each government shall recognize the estab- 
lished government of the others. When there 
is a government de jure (according to law) and 
another governmeot de facto (according to fact), 
the latter, if actually in power, must be recog- 
niged ; otherwise there would be continual war. 

This recognition of another country is shown 



464 INTERNATIONAL LAW 

by the appointment of a representative to reside 
at the capitol of that country. In case of the 
larger countries, this representative is known as 
an ambassador (from Latin ambactus, vassal) ; in 
case of the others he is known as a miuister 
Latin, a servant). 

Hence the receiving of ambassadors, which is 
left to the president (64), is sometimes a matter 
of delicate diplomacy. During the civil war, 
had Great Britain received the representatives of 
the confederacy, the United States might have 
recalled its minister, and war with Great Britain 
might have resulted. Sometimes too the recep- 
tion of a minister is refused for personal rea- 
sons, on the ground that he is persona non grata 
(Latin, an unsatisfactory person). 

Sometimes an ambassador extraordinary is ap- 
pointed to serve in regard to particular business 
and to return when this is accomplished ; he is 
sometimes called an envoy (from Latin via^ way) ; 
and if he has full power to act for his govern- 
ment, he is an envoy or minister plenipotentiary 
(Latin plenus, full, and potens, powerful), with 
full power. 

Such a representative, his staff and his family, 
are not subject to the laws of the country in 
which they reside, or through which they pass 
in going and returning. They cannot be pro- 
ceeded against in the courts of other countries, 



AlvrBASSADORS. MESTISTERS, CONS^^LS 465 

and are responsible only to the laws of their own 
country after their return. These privileges are 
granted not only to show respect to the repre- 
sentatives of a foreign nation, but to prevent 
interruption in the discharge of their duties. 
Compare the privileges of legislators (see page 
223) and congressmen (see page 437). In Amer- 
ica the supreme court has original jurisdiction in 
all cases concerning ambassadors and ministers 
(68). 

To very small states, or temporarily to supply 
vancies in larger states, a charge d'aifaires (French, 
charged with business) is sent. 

A list 'of the principal ambassadors and minis- 
ters with their salaries will be found on page 590. 

The officers just named belong to the diplomatic 
service. There is also a consular service, with 
many more officials. Consuls (from Latin con- 
sulere to consult) are commercial representatives 
of the government residing in the principal 
foreign ports and cities. Their especial duty is 
to look after American shipping. They are 
legal guardians of the rights of American sea- 
men, and if they find a sailor destitute must 
furnish him relief at the expense of the govern- 
ment. But they also protect the commercial 
rights of our citizens, draw up legal documents 
for them, and settle the estates of Americans 



466 INTERNATIONAL LAW 

deceased within their districts when not other- 
wise provided for. 

It is also the duty of the consular as it is of 
the diplomatic service to collect and forward to 
Washington such information as may be of ser- 
vice to the American government or people. 
Many published consular reports deal with com- 
mercial, agricultural, or manufacturing statistics, 
meant to be of use to Americans. 

This gathering of information is especially 
important as regards diplomatic relations. Dur- 
ing the civil war the consul at Liverpool informed 
the secretary of state that a ship, the Alabama, 
was building there to serve as a confederate 
cruiser. The secretary of state requested the 
British government to prevent the vessel from 
going to sea, and when it escaped from the har- 
bor, informed the British government that it 
would be held responsible for all damage inflicted 
by the vessel upon American shipping. The 
matter was referred to arbitration, and the Brit- 
ish government paid to the United States 15 J 
minions as a settlement of the Alabama claims. 

In the larger foreign cities, the consul is known 
as a consul-general, and the office is very lucra- 
tive. Sometimes the consul-general is also the 
minister resident. 

Consuls are subject to the laws of the country 
where they reside. 



IMMIGRATION 467 

All tlicse diplomatic and consular officers are 
appointed by the president with consent of the 
senate, and before they can enter upon their 
duties must present a certificate of appointment 
and be acknowledged by the government of the 
country to which they are accredited. 

It is agreed that the jurisdiction of each coun- 
try shall extend over all its territory, including 
its rivers and harbors, and 3 nautical miles (about 
3 J English miles^ into the ocean, the rest of the 
ocean being free to all. 

Intercourse between the citizens of one nation 
and those of another depends upon treaty. A 
country may prohibit immigration or emigra- 
tion ; it may forbid imports or exports, or levy 
such duties as to make them impossible. Thus 
the Chinese have few rights in the United States 
(see pages 157, 161). 

The present laws of the United States exclude 
convicts, insane persons, paupers, polygamists, 
and perspns having contagious diseases. The 
Chinese, and laborers under contract or agree- 
ment to perform labor or service in the United 
States are also excluded, except in the case of 
persons engaged in the professions, and skilled 
laborers employed in the establishment of new 
industries. These last are excluded as likely to 
lower by competition the price of labor. 

Extradition (see page 554) is also a matter of 



4()S INTERNATIONAL LAW 

treaty, but such treaties exist between the United 
States and most civilized foreign countries. 

When difficulties arise between two countries, 
there are recognized measures of hostihty that 
fall short of actual war, such as letters of marque 
and reprisal (see page 399). 

Sometimes a country lays upon foreign vessels 
within its ports an embargo (from Spanish em- 
hargar^ to restrain), either to protect them, when 
it is called a civil embargo ; or as a sort of re- 
prisal, when it is called a hostile embargo. 
Though allowed by international law, embargo 
is seldom used save as a measure of war. 

When war has been determined upon against 
a nation it must be declared. It is no longer 
necessary to send a messenger to the opposing 
government, as the means of information are 
abundant ; to withdraw and ambassador is suffi- 
cient notice. 

To declare war a country should have just 
cause, and a definite and legitimate object. Of 
this the war- making country is usually the only 
judge, but some times other nations unite with 
it. If there has been treaty of alliance (from 
Latin ad, and Ugare, to bind), the other country 
may still exercise its own discretion as to being 
drawn into a war in which it was not an original 
party ; no treaty can bind a nation to enter upon 
an unjust war. 



DECLARATIOM OF WAR 469 

Congress alone has the power to declare war 
(36). In monarchies this power is exercised by 
the sovereign, but here it is retained by the 
sovereign people. Of the 3 methods of settling 
disputes between nations, by negotiation, by 
arbitration, and by war, the last is still often 
necessary. Whether it is necessary the people 
judge through their representatives. 

In the case of the civil war no act of congress 
declared war, as war is an armed conflict between 
nations. The act passed in 1861 was '^ to au- 
thorize the employment of volunteers to aid in 
enforcing the laws and protecting public prop- 
erty ". In 1898 congress enacted '' that war be 
and the same is hereby declared to exist between 
the United States and Spain. ' ' 

Upon the declaration of war all intercourse 
ceases, and all commerce between citizens is for- 
bidden. On the other hand, hostilities between 
individuals of one country and those of the 
other are forbidden, the war being between gov- 
ernments, not between persons. If war were 
declared between Great Britain and the United 
States, a citizen of New York who should rob or 
murder a Canadian would be a plain robber or 
murderer, with none of the rights of a soldier. 
Citizens of the hostile nation within the country 
are allowed to remain, unless by proclamation 
they are required to depart within a given time. 



470 INTERNATIONAL LAW 

Residents of the two nations who take no part 
in the war are uoii-combatants, and are secure in 
person and property, unless the latter is neces- 
sary for the uses of the army, in which case it 
is usually liberally paid for. 

The rights of non-combatants at sea used to 
be more restricted. On the ground that it was 
necessary in war to weaken the naval power of 
the enemy, it was customary to capture and de- 
stroy private vessels belonging to the subjects of 
the hostile nation. The modern tendency is 
against this. 

Of course vessels of a neutral nation (see page 
472) must be respected. When in 1861 the 
United States stopped the Trent, an English ves- 
sel, and took from it two confederate ambassa- 
dors, war with England might have resulted had 
not the government surrendered them. 

The property of belligerents (from Latin hel- 
ium, war, and gerere, to wage) may be coiifis- 
*cated (from Latin fiscus a purse) ; during the civil 
war Gen. Butler solved a- temporary difficulty by 
declaring the negroes who came to him contra- 
band (see page 472). 

When an enemy's force surrenders (from 
Latin re and dare to give back), the men cap- 
tured are known as prisoners of war, and must 
not be killed unless found to be deserters or spies, 
in which case they may be shot. Prisoners may 



THE MONROE DOCTRINE 47 I 

be confined, and in extreme cases fettered, but 
only SO far as circumstances make it necessary to 
prevent their escape. 

If war is declared between two countries there 
are still many recognized requirements of inter- 
national law. 

When war is declared, the nation taking the 
offensive usually claims that it does so to seek 
redress for some injury for which it has in vain 
sought other satisfaction (see the Declaration of 
independence, page 591). As we have seen (page 
462) there is no other penalty provided for the 
violation of international law. 

By agreement among the nations of Europe, 
it has been held for more than 2 centuries that a 
state may interfere with the political policy of 
another whenever it finds its own security en- 
dangered, in order to preserve the balance of 
power, ' ' such a disposition of things as that no 
one potentate or state shall be able absolutely to 
predominate and prescribe laws to the others. ' ' ^ 

Thus the Cririiean war of 1854 was undertaken 
by England and France for no other object than 
to maintain the balance of power in eastern 
Europe, and to prevent the aggrandizement of 
Eussia by the dismemberment of the Ottoman 
empire. ^ 

The United States claims a similar right to 

1 Vattel. 2Euc. Brit.iii. 267. 



472 INTERNATIONAL LAW 

interfere under what is called the Monroe doctrine, 
first stated by President Monroe in his message 
for 1823, '' that the American continents, by the 
free and independent condition which they have 
assumed and maintain, are henceforth not to be 
considered as subjects for future colonization by 
any European powers ' ' ; and that any attempt of 
European powers to colonize any portion of this 
hemisphere would be considered dangerous to our 
peace and safety. This doctrine has been fre- 
quently maintained in relation to proposed Euro- 
pean interference in Panama, Mexico, Venezuela, 
etc. , and has in 1901 been recognized in the treaty 
between Great Britain and the United States as 
to an inter-oceanic canal. 

When war has been declared between two 
nations, each has a right to expect other nations 
to remain neutral (from Latin neuter, neither). 
If it is a civil war and one party has obtained 
unquestioned control of the government, it may 
demand recognition from other governments (see 
page 463). 

A neutral nation has no right to supply to 
either belligerent such articles (usually the list is 
agreed upon) as assist it in carrying on the war ; 
these are called contraband (from Itahan contra, 
against, and hando, proclamation). To prevent 
their delivery to the enemy each of the hostile 
nations has the right of search over neutral pri- 



NEUTRAL NATIONS 47)3 

vate vessels. A neutral may not allow troops to 
be enlisted or privateers to be built within its 
borders (see page 4,66), or carry on any trade with 
either nation likely to help it carry on the war. 

A neutral nation has corresponding rights. It 
'may for instance forbid the transportation of 
troops across its territory. 

Each nation also has the right to declare a 
blockade (from Old English blok, now block), or 
closing of tbe enemy's ports, and may seize and 
confiscate any vessels that try to enter. But 
the blockade must be effectively maintained, by 
sufficient force to make it dangerous to enter; 
otherwise it would be a " paper blockade ' ' and 
of no effect. 

When a fortified town resists an army, it is 
often attacked by siege (from Latin sedere, to 
sit), investing it by an army so as to prevent 
egress and ingress, and gradually approaching it 
by fortifications till it is forced to surrender. 

Armed private vessels commissioned by the 
government are known as privateers (see page 
399), and may capture vessels belonging to 
the enemy, the owner and crew keeping the 
property (compare letters of marque, page 
399). During the civil war, congress authorized 
letters of marque (51), but none were issued. 
The Alabama (see page 466) was a confederate 
privateer. 



4 74 INTERNATIONAL LAW 

To compensate for the additional danger of 
naval battles, the property captured becomes the 
property of the naval forces taking it, and its 
value is divided among the officers and men as 
prize money. 

Hostilities may be temporarily suspended by a 
truce (from Old English trewe, truth), during 
which actual hostilities cease. 

When war has been declared, peace can come 
only through the negotiations of ambassadors 
representing the two nations, and the treaty of 
peace agreed upon must be accepted by the presi- 
dent and senate before terminating the war. 

A treaty (from Latin tractatus handling) is an 
agreement between two or more nations upon 
specified topics, formally signed by commission- 
ers properly authorized, and ratified by the su- 
preme power of each state. Besides conditions 
of peace at the conclusion of a war, treaties may 
provide for adjustment of boundaries, cession 
of territory by purchase or otherwise ; extradi- 
tion of criminals (see page 554), reciprocity (from 
Latin reciprocus^ alternate) in trade as regards 
duties upon imports, etc. ; and many more mat- 
ters, such as postal rates, patents, and copy- 
rights. In the United States all dealing with 
foreign nations is reserved to the national 
government (51). The initiative is with the 
president, through the secretary of state (see 



TREATIES 475 

page 396) ; but all treaties must be ratified by the 
senate (62)/ which always considers them in 
secret or executive session (see page 436) where a 
vote is required. Something of strength and 
celerity in diplomacy is lost by thus conferring 
the treaty-making power upon a large body of 
men. ^ If changes in the treaty are made by the 
senate, the entire treaty must be submitted 
anew to the president and to the government 
with which negotiations are pending. 

Our most important treaties have been with 

England (1T83, 1794, 1814, 1842, 1846, 1850, 
1901); 

France (1800, 1803); Spain (1783, 1819, 1898); 

TripoU f 1805) ; Mexico (1848) ; 

Algiers (1815); Eussia (1867). 

By the treaty of 1898, Spain ceded control of 
Cuba, Porto Eico, the Philippines, and other 
islands, and received 20 millions for its improve- 
ments in the Philippines. 

By the treaty of 1901 England waived any ob- 
jections that might arise out of the treaty of 
1850 to the construction of a ship canal between 
the Atlantic and Pacific under the auspices of 
the United JStates, and guarded by the United 
states with such military police as may be neces- 
sary to protect it against lawlessness and disor- 
der. The canal is to be under the same rules of 
leutralization as the Suez canal. 



B i.l03, 221. 1 Hadley, page 22. 



CHAPTER XLVII 

PRINCIPLES OF GOVERNMENT 

We have considered the various forms in 
which government is exercised in the United 
States, and it is well now to consider what 
government is, and what is the source of its 
authority. 

. Government (see page 15) is control. It is the 
instrument which society uses to secure liberty 
and justice. It is the power which makes, con- 
strues, and executes the laws. Gladstone says : 
*' It is the function of government to make it 
easy to do right and hard to do wrong. " 

The word government is used both of the sys- 
tem of government, as when we say the govern- 
ment of America is based on the constitution ; 
and of the officers who administer it, as when 
we say the government has concluded a treaty 
with Spain. 

There are many theories of the origin of gov- 
ernment. Plato saw in the government of the 
state only the development of the government 
of the household. Aristotle thought the state 
prior to the individual, in the sense that it is the 
true object of the social instinct implanted in 

(476) 



ORIGIN OF GOVERNMENT 477 

man, and only required legislative skill to bring 
it to perfection. Hobbes held that mankind 
were driven by fear to enter into a solemn com- 
pact by which they renounced their freedom and 
gave absolute obedience to "Leviathan'', the 
state. Locke, Rousseau, and others, looked up- 
on government as a social contract. Some hold 
that the state is founded to obtain the greatest 
happiness of the greatest number; some prefer 
to say it is intended to fulfil the highest aspira- 
tions of humanity. Fairbanks says : ' ' It is evi- 
dent that forms of activity which demand the 
final power of the whole society for their realiza- 
tion, or, again, which require general rules abso- 
lutely enforced on all classes alike, come within 
the proper sphere of the state. On the other 
hand an almost universal experience has shown 
that where freedom of initiative is required, 
pohtical machinery is hkely to stand in the way 
of success. "1 

The control possessed by governnient came 
originally from force. In rude times the man 
who excelled in strength, in courage, or in sagac- 
ity became the leader; sometimes because he 
usurped authority, sometimes because he pro- 
tected his companions in danger, and they learned 
to depend on him. Thus monarchy (from G-reek 
monos, sole, and archos, chief), grew up, a gov- 

-1 Introduction to Sociology, 3d ed., page 195. 



478 PRINCIPLES OF GOVERXMEXT 

eminent where the authority is vested in one 
person. The sovereign often managed so that 
his children would succeed to his power, and 
thus monarchy became hereditary (from Latin 
heres, heir). 

The earliest form of monarchy was patriarchal 
(from Greek pater, father, and archos, leader), 
where the father was the head of his family, 
which, if the father had reached old age, might 
with children and grand- children form a consid- 
erable body. This developed into the clan and 
the tribe (see page 22), which were larger fami- 
lies, with broader relationships. 

The Hebrews had a particular form of patriar- 
chal and tribal government, called a theocracy 
(from Greek theos, good, and kratein^ to rule), 
following religious leaders whom they believed to 
commune directly with God, and laws that they 
believed to be handed down from Heaven on 
Mount Sinai. 

The tribe in turn developed into the city of 
the Greeks and Eomans, which furnished besides 
defence an administration of justice, and some 
direction of the common life of its members. 

Another form of monarchy was feudal (see 
page 147). In this the functions of the state in- 
cluded besides defence and administration of jus- 
tice considerable direction of private affairs, 
especially as regarded economic production and 



ABSOLUTE MONARCHY 479 

distribution. In theory the state was concen- 
trated in the king. 

Nobles owed their allegiance to him personally ; 
they received their lands from him, to distribute 
among subordinates. 

Absolute monarchy is a government in which 
there is no law-making power except the sov- 
ereign, and his laws are interpreted and executed 
by officers responsible only to him. The words 
despot and tyrant originally meant only single 
ruler ; that they have reached their present mean- 
ing shows the tendency of this sort of govern- 
ment. Montesquieu distinguished despotic from 
monarchic government in that in the former one 
man controls everything by his will and caprice, 
while in the latter he follows fixed and estab- 
lished laws. 

If the monarch were the wisest and best man, 
this would be in many ways a desirable form of 
government ] but it would not educate the people 
to govern themselves, and would leave the people 
helpless when a weak or wicked king succeeded 
to the throne. 

Among primitive peoples it is the only form 
possible. At the present time, though nations 
like Kussia are nominally so, there is really 
among important nations no absolute monarchy. 
Even in Turkey and in China there are customs 
that the monarch does not dare disregard. If 



480 PRINCIPLES OF GOVERNMENT 

he is too autocratic, he may be dethroned by 
the people or by an usurper. 

In a limited monarchy the hereditary executive 
acknowledges laws made by a legislative body 
chosen by the people. The power of this legis- 
lative body may become in itself absolute and 
the monarchy only nominal, as in England (see 
page 429). 

Sometimes instead of the power falling into 
the hands of one man it has been held collec- 
tively by a small group of men who have assumed 
power ; it is then called an oligarchy (from Greek 
oUgos, few, and archein to rule). In Venice a 
ring of rich merchants controlled the city. 

Sometimes there has been an attempt on the 
part of the people to choose a group of men to 
whom to entrust the government, which is then 
called an aristocracy (from Greek aristos, best, 
and kratein, to govern). Feudahsm was the 
parent of aristocracy. 

Oftener the heads of certain great families 
have contrived, to get the power and keep it in 
their hands, and transmit it to their descendants. 
Those holding titles because belonging to aristo- 
cratic families are called nobles (from Latin nos- 
cere, to know, something well known), and in every 
generation men are created nobles to reward dis- 
tinguished service, or, in some countries, even 
for a price. 



THE REPUBLIC 4S1 

In civilized countries it is no longer possible 
that the exclusive power of making laws should 
be given to persons on account of their birth. ^ 

' ' We hold these truths to be self-evident, that 
all men are created free and equal ' ' (see page 
591). 

In a pure democracy (from Greek demos, the 
people, and kratein to govern) the entire body of 
people meet and make the laws and elect their 
officers directly. This is possible only in a small 
community (see page 62). 

A republic (from Latin res affairs, smdpubltca, 
public), or commonwealth, is a representative de- 
mocracy, where the legislature and the more 
important officers are elected periodically by the 
people. It is " a government of the people by 
the people, for the people " (see pages 26, 62). 

Madison said -J " We may define a republic to 
be a government which derives all its powers 
directly or indirectly from the great body of the 
people, and is administered by persons holding 
their offices during pleasure, for a limited period, 
or during good behavior. ' ' 

Much depends upon the extent to which the 
suffrage is granted. Athens was a republic, but 
only free men and natives could vote, and most 
of the people were slaves. 

' ' The principle of republicanism is the equal 

1 B ii.230, 296 ; Hadley, page 21. ^ Federalist, xxxix. 



482 PRINCIPLES OF GOVERNMENT 

right of the people, the citizens, all the members 
of the body politic. In theory it is the govern- 
ment of public opinion. * ^ * The fundamental 
principles of right and justice for the govern- 
ment, the representative character of the gover- 
nors, and their practical responsibleness to the 
governed, are the essentials of republicanism.-" ^ 

Many countries combine t^\ o or more of these 
forms. Thus England has the monarchial 
principal in the king, the aristocratic principle 
in the house of lords, and the republican princi- 
ple in the house of commons. Macaulay calls 
the Eoman emperors republican magistrates 
named by the senate 

^ ' Everyone knows that Aristotle divided gov- 
ernments into monarchy, aristocracy, and democ- 
racy. Very few know that Aristotle said that 
there was a more fundamental division of gov- 
ernments into those which were legitimate and 
those which were not ; the former being based 
on the consent of the governed and acting in the 
interest of the whole, while the latter were based 
on the authority of a class and exercised in the 
interests of that class. "^ 

We have seen (page 28) that except in abso- 
lute monarchies there is a division of power into 
executive, legislative, and judicial departments. 



1 Farrer, page 223. 2 Hadley, pages 139, 25. 



T^HE THR*]E DEPARTMENTS 483 

We have also seen that the boundaries of these 
departments are not distinct: 

(1) The executive has legislative power in the 
veto (see pages 373), and judicial povi^er in par- 
dons (see page 374). 

(2) The legislative power is executive in con- 
firming appointments (see page 457) and treaties 
(see page 475). Bryce declares (i.27l) that under 
the English system the legislative and executive 
functions are interwoven as closely as under 
absolute monarchies. 

It has judicial power in impeachments (see 
page 458); and has power over the judiciary by 
impeachment (see page 460), and sometimes by 
appointment (see page 289). When elections are 
indecisive it has even the power of the people 
to choose the executive (see page 367). But 
while entire separation of the three powers is 
impossible, the national constitution aims to 
make it as complete as is practical. 

In England the legislative power has become 
supreme (see page 429). 

(3) The judiciary has executive power in some 
appointments (see pages 74, 284), and in such 
writs as injunctions (see page 270). 

There is a further distinction as to whether a 
government is centralized, as in France, where 
the national government pays for and controls 
the schools and the police ; or whether as with 



484 



PRINCIPLES OF GOVERNMENT 



US such interests as these are managed by local 
authority. When local affairs are referred to a 
central authority, the government is sometimes 
called a bureaucracy, a ruling through officials. 
There is a fable of a French educational official 
who took out his watch and said to a caller, "At 
this instant every 4th-year pupil in France is 
spelling gouvernment. ' ' 

Tolman Smith makes a direct antithesis. ^ 



In centralization, control 
hy 

the smallest number of 

minds ; 
knowing the least about 
the special matter 
in hand; 
having the fewest op- 
portunities to 
know; 
having the smallest in- 
terest in its well- 
working. 

The United States offers a remarkable illustra- 
tion of local self-government by adding to the 
republican principle of government the federal 
(from Latin foedus, treaty) principle — that of 
compact of states with one another by which 
they delegate certain powers to their union as a 

1 Local Self -Government and Centralization, London, 1851. 



In local self-government, con- 
trol hy 

the gi:eatest number of 
minds ; 

knowing the most 
about the special 
matter in hand ; 

having most opportuni- 
ties to know ; 

having most interest in 
its well-working. 



THE FEDERAL PRINCIPLE 485 

whole, and retain only a limited sovereignty. 
This principle of giving control of matters of 
general interest to the general government, and 
leaving to the states control of matters of local 
interest, prevails throughout our entire system. 

Hence our government of towns, counties, vil- 
lages, and cities is called local (from Latin locus, 
a place), restricted to one place. Villages and 
cities are never formed by the legislature ex- 
cept by request or consent of the inhabitants, so 
that they are voluntary pohtical organizations, 
chartered expressly so as to take better care of 
their own interests. But towns and counties are 
involuntary political organizations, established by 
the board of supervisors by authority of the 
legislature, chiefly to administer matters of 
county and state concern within their own 
localities. 

It would be entirely possible to dispense with 
local goverimaent. As we have seen (page 337), 
the national government appoints from Wash- 
ington every officer who performs its functions. 
But the national government has no authority 
over most of the matters with which local gov- 
ernment is most concerned ; it does not interfere 
with schools or elections or taxation. 

Moreover, as Bryce says (i.343) : " Self-govern- 
ment stimulates the interest of people in the 
affairs of the neighborhood, sustains local politi- 




O^^ONDAGA COUNTY, 1901 
Heavy lines show the three commissioner districts. The city of Syracuse is a 
separate school district. 



LOCAL GOVERNMENT 487 

cal life, educates the citizen in his daily round of 
civic duty, teaches him that perpetual vigilance 
and the sacrifice of his time and labor are the 
price that must be paid for individual liberty 
and collective prosperity. Self-government se- 
cures the good administration of local affairs by 
giving the inhabitants of each locality due means 
of overseeing the conduct of their business." 

The map on the opposite page indicates the 
extent of subdivision in New York. The state 
itself is only one among 45, and Onondaga is 
one of the 61 counties of the state. Yet it is 
divided into 19 towns, and a single one of these 
towns, Onondaga, is divided into 25 school dis- 
tricts. That last division seems a small unit, 

45X61X19X25 = i;30i:8T5 °^ '^' •^°^'^*^y- 
Yet the history of District No. 21 for three- 
quarters of a century as given in The School 
Bulletin for March, 1901, shows that all these 
years the people attended every school meeting, 
discussed the matters that came up, recorded the 
ayes and noes on every important vote, abode 
by the decision of the majority, and at a good 
deal of sacrifice continually maintained what 
was from period to period a school fully up to 
the times. That is a record to be proud of, and 
it is typical of local government in the United 
States. 



488 PRINCIPLES OF GOVERNMENT 

All these forms of government, much as 
as they differ, depend upon a common principle, 
that men are social beings, that they must live 
together, and that to live together safely and 
profitably they must be subject to control. Aris- 
totle said (see also page 476): ''Whoever lives 
voluntarily out of civil society must either have 
a vicious disposition or be an existence superior 
to man," Society, then, is a necessity; and 
equally necessary is a form of government. 

Civics has been defined as ''the body of 
knowledge or science which devotes itself to the 
consideration of citizenship relations, including 
the reciprocal relations of government and citi- 
zenship. ' ' Civics seeks properly to coordinate, 
as parts of an integral science, the essential truths 
with which the citizen must be familiar in order 
to make the best use of his powers and priv- 
ileges. It includes 

"I. Ethics. — The doctrine of duties in society. 
In other words, the study and setting forth of 
the conditions in human character which are 
essential to the welfare of the citizen, society, 
and government. As right character is the 
natural source of right actions, the science of 
civics first concerns itself with the facts which 
underlie and account for these essential charac- 
teristics of the good citizen. 

" II. Civil polity. — Governmental methods and 



THE FIELD OF. CIVICS 480 

machinery ; suffrage, rights and obhgations ; the 
quahfications and duties of pubhc officials ; execu- 
tive, legislative and judicial affairs, and all other 
matters having relation to the orderly and proper 
administration of government. 

"III. Law. — The principles and facts of the 
law in application most directly involving the 
interest of society, and especially of the citizen 
and the government. 

''' IT. Economics. — The principles or laws which 
explain the production, distribution and owner- 
ship of that which constitutes, or is technically 
called, wealth. 

"T. Sociology. — The science of society in all 
its relations, and the care of the dependent, 
defective, and delinquent classes. 

"TI. History. — Collateral facts illustrative of 
tendencies and results growing out of given 
conditions, considered in connection with ethics, 
civil pohty, law, sociology, and eonomics.''^ 

In a volume like this we can consider civics 
only in its narrower sense of civil pohty, as 
defined above. 

Woolsey^ says: ''A state is a community of 
persons living within certain limits of territory, 
under a permanent organization, which aims to 
secure the prevalence of justice of self-imposed 

1 Henry Eandall Wait, in Political Science News. 
2 International Tiaw. 



490 PRINCIPLES OF GOVERNMENT 

laws. ' ' The expressive ' ' prevalence of justice ' ' 
covers a wide range. It involves defence in war 
— protection of the people as a whole from incur- 
sions and unjust exactions by other nations. It 
involves security of life, liberty, and property at 
home. In short it involves an entire defence 
against inequitable interference with the citizen's 
" pursuit of happiness ". 

This defence sometimes seems at first to inter- 
fere with liberty and property. A man is not 
allowed except by express permission to build a 
wooden house within the ' ' fire-limits " of a city, 
because a house easily burned would seriously 
endanger other property. For the same reason 
a merchant would not be allowed to carry an 
unlimited stock of gun-powder or of dynamite. 
Some cities have plumbing inspectors, who com- 
pel the owners of houses to put in plumbing that 
is sanitary. 

But the modern state does more than to de-^ 
fend, — it promotes. It does for the community 
what individuals could not do for themselves. 
The United States carries letters to the Phihppine 
islands for 2 cts. , publishes predictions as to the 
weather, distributes seeds among farmers, gives 
land to help build railways, and subsidies to en- 
courage shipping. 

New York pays for pubhc schools in its remot- 
est corners, the public money proving aU that is 



THE LAISSEZ-FAIRE THEORY 4:91 

used in many districts and being far more than 
was spent altogether fifty years ago. It has 
given bounties to encourage making beet- sugar ; 
and on the other hand it prohibits the sale of 
uncooked meat on Sunday. ^ 

Having done so much for the people, should 
not the government do more ? Why should it 
not buy all the railways and telegraph lines, and 
carry people for cost or less ? 

The doctrine called laissez-faire (French, let 
things alone) objects to all this. It says legis- 
lators are not wise enough men to meddle with 
other people's business to this extent. If the 
government protects one kind of business it 
necessarily puts an extra burden on some other 
kinds. If it prescribes that the laboring-man 
shall work only 8 hours, it tempts to evasion of 
the law, and it prevents men from earning as 
much as they might. ' ' The new democracy is 
passionately benevolent, and passionately fond 
of power. "2 ' ' ^ Virtue, ' ' ' says a French writer, 
^ ^ ' is more dangerous than vice, because its ex- 
cesses are not subject to the restraints of con- 
science. ' ' ' There is a great deal of legislation, 
and a great deal of socialism, to which this re- 
mark will apply. Its promoters believe them- 
selves to be actuated by moral ideas, when the 
chief ground for this belief is the absence of in- 
tellectual ones. " 3 • 



1 392:1901. ^ Farrer. » Hadley, page 56. 



CHAPTER XLVII 

PERSONAL RIGHTS 

We have already spoken of the rights guaran- 
teed to the citizen by the constitutions of Ne\r 
York and of the United States (see pages 136- 
153), including his"" legal rights both in civil and 
in criminal cases. 

Some of the further rights given him under 
the common law and under statute should be 
considered. 

The security of the citizen permits a man to 
defend himself against attack. He may carry 
arms (85), though many states forbid him to 
carry them concealed; and when in danger of 
his life or of serious physical injury he may use 
all necessary means to protect himself, even to 
taking the life of his assailant. He may take 
the life of a burglar, who is presumed to be 
ready to commit murder. 

The force permitted, however, depends upon 
the violence of the assault. A man may not, for 
instance, shoot boys who are stealing his apples. 

In many cases the victim of an assault has 
his best redress in a criminal action at law against 
his assailant. He may even on sufficient evi- 

(492) 



PARENTS AND FOSTER-PARENTS 493 

dence require his enemy to give bonds that he 
will keep the peace. 

His liberty involves the right to go or to re- 
main where he pleases. If he is restrained of 
this liberty, even for a short time as by an un- 
warranted arrest, he may recover damages. But 
this Uberty is not license to interfere with the 
liberty of others. It does not, for instance, per- 
mit entrance upon private property. 

In the case of children, people of feeble mind, 
and others who require guardianship this liberty 
is to some degree limited, but only so far as it 
may be shown to be for their interest. 

Parents (from Latin parens, a parent) must 
support and educate their children up to the age 
of 21. They have the right to the custody and 
to the labor of their children, and may punish 
their children within reasonable limits. As to 
laws with respect to marriage, see pages 146, 521. 

Children may be adopted (from Latin ad and 
optare, to choose), a legal act by which an adult 
becomes a foster-parent, and takes a minor into 
the relation of a child, thereby acquiring the 
rights and incurring the responsibilities of a 
parent. ^ Consent is necessary (a) of the minor 
if over 12 years of age; (b) of the husband or 
wife of the foster-parent ; (c) of the parents ; or 
if neither is living, of a person of full age having 

1 372:1896. 



494 PERSONAL RIGHTS 

custody of the child, if there be such. The fos- 
ter-parents must submit to the surrogate a writ- 
ten agreement to treat the foster-child as their 
own lawful child, whereupon the surrogate may 
make an order allowing the adoption. After this 
the child's own parents have no further rights or 
control over him. The adoption may be abro- 
gated only by proceedings before the surrogate. 

Where a minor has individual property, as by 
bequest, a guardian (from German warten, to 
watch) is appointed, of whom the child becomes 
the ward (from Anglo Saxon tveard, guard). 
Where there are parents, one of them is usually 
appointed guardian. Where there are no par- 
eots the guardian enters into considerable of the 
parental relation, with right to the custody of 
the ward, and to educate him, as well as to care 
for his property. ^ 

In the case of apprentices (from Latin appren- 
dere, to learn), who are bound to give their ser- 
vices to a master till a specific time, usually till 
they are 21, in return for which they are to be 
taught a trade, the relation is practically that 
of children. The relation is uncommon in 
America, except where pauper or orphan chil- 
dren are bound out by the proper authorities to 
those who will care for them under an indenture 
(from Latin in and dens, a tooth), which must 

1 272:1896. . 



SLAVERY 495 

include agreement to teach the child reading, 
writing, and arithmetic. ^ 

The relation of master and servant (from Latin 
servare, to serve) no longer exists in its old form, 
where the master might beat his servant, and 
the servant must always defend his master. 
Several of the provisions of the national consti- 
tution refer to slavery ('^ all other persons ", 5, 
44:, 75). This was abohshed in the United States 
by President Lincoln's emancipation proclama- 
tion of 1863, which had upon the negroes the 
much of the effect that naturalization has upon 
aliens. Slavery was subsequently forbidden by 
an amendment to the constitution (98). The 
civil rights bill of 1866 expressly conferred upon 
the freemen all the rights of citizens, and was 
subsequently embodied in substance in the con- 
stitution (99). 2 

Eights always involve corresponding duties, 
and as the rights of American citizens are greater 
than those of any other people, so are his duties 
more extensive and imperative. Of these we 
have frequently spoken and especially on pages 
184 to 187. 

The first duty of the citizen is to be obedient 
(from Latin ob and audire, to hear), to be a law- 
abiding citizen. There are few people to whom 
all the laws are agreeable, and there are fre- 

1 488:1899. 2Bii.£33. 



496 PERSONAL RIGHTS 

quent occasions when the operation of even 
an admittedly wise law is inconvenient. The 
temptation is to disregard the law, perhaps to 
declaim against it. .The dutiful citizen will not 
only obey the law, but show respect to the agent 
through whom the law is executed. Even if the 
agent is indiscreet in the exercise of his duty, 
the citizen should still show his regard for the 
law by sustaining him so far as possible. He 
will not only pay the taxes necessary for support 
of the government, but he will do so cheerfully 
(see page 293). 

Of course a law might be passed which it 
would be wicked to obey. In such a case, if it 
be absolutely a matter of conscience, a man 
must be willing to bear the legal penalty until 
he can secure the repeal of the law. Granville 
Sharp '^ gave up his place in the ordinance office 
of England because he could not conscientiously 
handle war material to be used against the 
American colonies." 

A second duty is that of public service. In a 
republic the office should seek the man, and 
when it finds him he should not shrink from the 
duty, even if unwelcome or onerous. Ealph 
Waldo Emerson served as pound- master at 
Concord. 

He must exercise the right of franchise (see 
page 154). When the administration of public 



OBEDIENCE, PUBLIC SERVICE, PUBLIC SPIRIT 49T 

officials seems unwise or dishonorable, he should 
not simply grumble but strive to supplant un- 
worthy officers by those who are worthy, and so 
to correct the laws as to make misgovernment 
impossible. 

A third duty is to be public spirited, ready to 
give his attention, his time, and his money to 
matters of public concern ; looking to the good of 
the whole rather than to his individual interests 
alone ; proud of his village and his town and his 
state and his country, and ready to do his share 
to make all these worthy to be proud of ; ready 
to serve on a jury even when he could better 
afford to make a present to the plaintiff of twice 
the amount involved than to spare the time (see 
page 142), because jury-trial and justice between 
man and man are principles worth contending 
for, even when the immediate matter at issue 
is triffing. 

The citizen should feel a pride in his commun- 
ity that will lead him to make personal effort in 
its behalf. He should be clean in appearance, 
and keep his home tidy, not only for his own 
sake but for the sake of his locality. He should 
be civil in manner, especially to strangers. He 
should feel a personal interest in the care of 
public property. 

The author of this book never saw a filthier 
city than Valladolid in Spain. Yet along the 



498 PERSONAL RIGHTS 

river lies a park with rare trees and flowers, un- 
guarded save for a sign reminding the visitor 
that the authorities feel safe in trusting its pro- 
tection to the honor of those who dwell in ancient 
Castile. 

All the world hates a shirk, and he is an in- 
tolerable shirk who benefits by all the blessings 
of a free government and yet tries to evade his 
share in upholding its honor. 

When war is declared, the citizen's duty re- 
quires him to be in readiness to become a soldier 
(see page 197). There may be conflict of duties; 
if he is the sole support of his family, he may 
be compelled to stand back so long as others 
with fewer responsibilities are rushing forward. 
But when he is summoned he must go, for if her 
citizens will not defend her, a country will soon 
disappear. 

It is not a question whether he wholly approves 
of the action of the government which has led 
to the war. While she is in danger, he must 
cry: 

Our country, right or wrong. 

Military service may be required when no war 
has been declared. In time of riot, the citizen 
should be quick to heed the summons of the 
sheriff or the governor. 

The time has come and may come again when 
it is the duty of the citizen to fight against the 



REBELLION AND REVOLUTION 499 

government. It has been said that a revolution 
(from Latin re and volvere, to turn round) is a 
rebellion (from Latin re, again, and helium, war) 
that has proved successful. It is a desperate 
resource, but when the government oppresses the 
people, when reforms within the law have failed 
and when the government seems likely to per- 
petuate itself in evil, the duty of citizens is to 
resist. 

It is equally the duty of the government to 
compel obedience, and if the rebellion becomes 
general enough to be a formidable adversary, 
civil war results (see page 469). 

When does a rebellion become a revolution ? 
When it proves to have behind it the force of 
public opinion. 

' ' Governments have always rested and, special 
cases apart, must rest, if not on the affection, 
then on the reverence or awe, if not on the ac- 
tive approval, then on the silent acquiescence of 
the numerical majority. It is only by rare ex- 
ception that a monarch or an ohgarchy has main- 
tained authority against the wiU of the people. " ^ 

It has taken pohtical leaders sometime to learn 
this. Sir Eobert Peel, for instance, in a letter 
written in 1820, speaks with the air of a dis- 
coverer, of ' ^ that great compound of folly, weak- 
ness, prejudice, wrong feeling, right feeling, 

iBii.347-249 ; Hadley, page 139. 



500 PERSONAL RIGHTS 

obstinacy, and newspaper paragraphs, which is 
called pubHc opinion. " ^ 

.Its power has been especially developed in 
America. • Bryce says : ' ' Of all the experi- 
ments which America has made, this is that 
which best deserves study, for her solution of 
the problem differs from all previous solutions, 
and she has shown more boldness in trusting 
public opinion, in recognizing and giving effect 
to it, than has yet been shown elsewhere. Tow- 
ering over presidents and state governors, over 
congress and state legislatures, over conventions 
and the vast machinery of party, public opinion 
stands out, in the United States, as the great 
source of power, the master of servants who 
tremble before it " (see page oOrt). ^ 

^'The excellence of popular government lies 
not so much in its wisdom — for it is as apt to err 
as other kinds of government — as in its strength. 
It has often been compared to a pyramid, the 
firmest based of all buildings. Nobody can be 
blamed for obeying it. There is no appeal from 
its decisions. Once the principle that the wiU 
of the majority, honestly ascertained, must pre- 
vail, has soaked into the mind and formed the 
habits of a nation, that nation acquires not only 
stability, but immense effective force. It has 
no need to fear discussion and agitation. 'It can 

1 B ii.247. 2 B ii.230, 239, 300, 308, 309. » b ii.255, 251. 



POWER OF PUBLIC OPINION 501 

bend all its resources to the accomplishment of 
its collective ends. The friction that exists in 
oountries where the laws or institutions handed 
down from former generations are incompatible 
with the feelings and wishes of the people has 
disappeared. A key has been found that will 
unlock every door. ' ' 

' ' If excitement has risen high over the coun- 
try, a majority of the people may acquiesce ; and 
then it matters little whether what is really a 
revolution be accomplished by openly violating 
or by merely distorting the forms of law. To 
the people we come sooner or later; it is upon 
their wisdom and self-restraint that the stability 
of the most cunningly devised scheme of gov- 
ernment will in the last resort depend. ' ' ^ 

President Hadley points out an important dis- 
tinction. ' ' It will be readily seen that public 
sentiment, as thus described, is a very different 
thing from much that passes under that name. 
If a large number of people want a thing, we 
not infrequently hear it said that there is a pub- 
lic sentiment in its favor. It would be much 
more correct to say that there is a widespread 
personal interest in securing it. The term ^ pub- 
lic sentiment ' can only be applied to those feel- 
ings and demands which people are willing to 
enforce at their own cost, as well as that of 

iBii.269. 



502 PERSONAL RIGHTS 

others. The desire for better municipal govern- 
ment on the part of the man who is not wiUing 
to labor for that end, the effusive patriotism of 
the man who hopes thereby to lead other people 
to enter upon a war of which he may celebrate 
the glories and enjoy the fruits, the denunciation 
of trusts by the man who has tried to do what 
they do and has not succeeded, can never be re- 
garded as expressions of pubhc sentiment in any 
true sense. They are but instances of the selfish- 
ness, the vain-gloriousness, and the enviousness 
of large sections of the community. " ^ 

Genuine pubhc opinion has produced no gen- 
eral disposition to lawlessness, which on the con- 
trary diminishes in the older parts of the coun- 
try. And it is counter-balanced or replaced in a 
serious crisis by a firmness in repressing dis- 
orders which some European governments may 
envy. When men are thoroughly awakened to 
the need for enforcing the law, they enforce it 
all the more resolutely because it has the whole 
weight of the people behind it. ^ 

'' So far indeed, is insubordination from being 
a characteristic of the native Americans, that 
they are conspicuously the one free people of 
the world which, owing to its superior intelli- 
gence, has recognized the permanent value of 
order, and observes it on every occasion, not 

1 Hadley, page 141. 23 ii.462. 



POWER OF PUBLIC OPINION 503 

least when a sudden alarm arises. Anarchy is 
of all dangers or bugbears the one which the 
modern world has least cause to fear, for the 
tendency of ordinary human nature to obey is 
the same as in past times, and the aggregation 
of human beings into great masses weakens the 
force of the individual will, and makes men 
more than ever hke sheep, so far as action is 
concerned. Much less, therefore, is there ground 
for fancying that out of anarchy there will grow 
any tyranny of force. ' ' ^ 

On the other hand, law that is in advance of 
public opinion can not be enforced (see page 254). 
' ' What is it that has rendered murder a rare ex- 
ception instead of a frequent social event ? It 
is not the existence of statutes which make 
murder a crime; it is the growth of a public 
opinion which makes the individual condemn 
himself and his friends, as well as his enemies, 
for indulgence in that propensity. There were 
laws enough against murder in Italy five hun- 
dred years ago; bat these laws were practically 
inoperative, because they had not really formed 
part of the social conscience, as they have to- 
day. On the other hand, the social conscience 
of mediaeval Italy, with aU its laxity in the mat- 
ter of murder, was strict in certain matters of 
commercial trust, on which it is to-day relatively 

1 B ii.4o6. 



504 PERSONAL RIGHTS 

loose. A man actually forfeited self-respect by 
a questionable financial transaction in those days 
as he did not forfeit it by the murder of two or 
three of his best friends. As a consequence, 
that particular kind of financial immorality was 
much rarer then than it is now. ' ' ^ 

How is public opinion directed ? Not by the 
political leaders, who, as Bryce has said above, 
tremble before it. ^ Nor does it come from men- 
tal grasp of the situations presented at the vari- 
ous elections. ^ Indeed public opinion has often 
gone astray, and become tyrannical, ^ It is senti- 
ment rather than thought that the masses con- 
tribute to the solution of the questions of the 
day, ^ ^ and the soundness and elevation of their 
sentiment will have more to do with their tak- 
ing their stand on the side of justice, honor, and 
peace, than any reasoning they can apply to the 
shifting of the multifarious facts thrown before 
them, and to the drawing of the legitimate in- 
ferences therefrom. ' ' ^ 

Bryce says: ^'If the political education of the 
average American voter be compared with that 
of the average voter in Europe, it stands high; 
but if it be compared with the functions which 
the theory of the American government lays on 
him, which its spirit imphes, which the methods 

1 Hadley, pages 29, 23. ^^ ii.229, 246, 260, 262, 296. 

3 B ii.242, 246, 261, 464. ^ B ii.283, 356, 360. '- B ii 242. 



EDUCATION OF PUBLIC OPINION 505 

of its party organization assume, its inadequacy 
is manifest. This observation, however, is not 
so much a reproach to the schools, which gener- 
ally do what English schools omit — instruct the 
child in the principles of the constitution — as a 
tribute to the height of the ideal which the 
American conception of popular rule sets up. 

' ' For the functions of the citizen are not, as 
has hitherto been the case in Europe, confined to 
the choosing of legislators, who are then left to 
settle issues of policy and select executive rulers. 
The American citizen is virtually one of the gov- 
ernors of the republic. ' ' 

*' The fact that it is called by a singular name 
has made many forget that the people means 
nothing more than so many individual men. 

" There is a sense in which it is true that the 
people are \viser than the wisest man. But 
what is true of their ultimate judgment after 
the lapse of time sufficient for full discussion, is 
not equally true of decisions that have to be 
promptly taken. ' ' 

'' It may seem a paradox to add that public 
opinion is on the whole wholesome and upright. 
Nevertheless this also is true. ' ' ^ 

Bryce pays tribute to what education is doing 
for popular government. ''The seats of learn- 
ing and education are at present among the most 

1 B ii.277. 465. 230. 



506 PERSONAL RIGHTS 

potent forces making for progress and the forma- 
tion of sound opinion in the United States, and 
they increase daily in the excellence of their 
teachers no less than in the number of their 
students. ^ ^ ^ 

" One is amused by the bitterness — affected 
scorn trying to disguise real fear — with which 
the ' college professors ' are denounced by the 
professional politicians as unpractical, visionary, 
Pharisaical, ' kid- gloved ', ' high-toned ', ' un- 
American ', the fact being that a considerable 
impulse towards the improvement of party 
methods, towards civil service reform, and to- 
wards tariff reform, has come from the univer- 
sities, and been felt in the increased political 
activity of the better educated youth. ' " ^ 

The fact that a college-president was in 1901 
called to the rescue of New York city from venal 
politicians shows the justice of this observation. 

1 B ii.395. 



CHAPTER XLIX 

PROPERTY RIGHTS 

The constitutional guarantees of that class of 
personal rights that pertain to property have al- 
ready been described (pages 147-152). Of the 
further rights granted by common law and by 
statute, only the most important can be touched 
upon, for the subject is vast. ^' The fundamental 
datum of modern economics is property right. "^ 

Property may be acquired in various ways. 

1. By labor. A pound of Iron may by labor 
be transformed into watch-springs worth more 
than tons of iron. This labor may take the form 
of production, as in the case of the farmer, the 
miner, or the fisherman; of manufacture; of 
distribution as in the case of merchants, seamen, 
railways, cartmen; of record, as in the case of 
book-keepers and accountants, and, in a larger 
sense, of editors; of protection, as in case of 
police, watchmen, fire engine companies and 
soldiers, and, in a wider sense, of lawyers or 
physicians ; of education, as in the case of teach- 
ers, clergymen, lecturers, and authors; of art, 
as in the case of painters, sculptors, and land- 

1 Hadley, page 72. 

(507) 



508 PROPERTY RIGHTS 

scape gardeners ; of recreation, as in the case of 
actors and musicians. 

The value of labor depends upon the ability of 
the worker, and also upon the rareness of the 
abihtj. Patti has sometimes received ^5,000 
for a single performance, in which her own 
singing occupied less than an hour. This was 
not only because she had a beautiful voice, but 
because there was no otner voice like hers. 

2. By exchange, or by purchase, which is vir- 
tually an exchange, money being the representa- 
tive of labor. A shoemaker might give a pair 
of shoes to the hatter, in exchange for a hat, but 
it is simpler for the shoemaker to sell his shoes 
and use the money to buy a hat (see page 407). 

3. By gift or by inheritance (see page 540). 

4. By accident, as when a man looking for 
something else discovers a gold mine, or when a 
man who has been compelled to take a piece of 
land for debt finds that it has quadrupled in value 
because a large manufactory is built up near it. 

When the West Shore railway was building, 
the contractors wanted something to fill in with 
near {Syracuse, and paid $100,000 for the sand in 
a hill that had been valueless, but which, thus 
levelled, became eligible residence property. 

Invention (from Latin in and venire, to come) 
is by derivation a stumbling upon a thing. 
Sometimes it is indeed that, as when Goodyear 



HOW PROPERTY IS ACQUIRED 509 

in disgust cast some sulphur in his hand into a 
pot of melted rubber, and saw that it produced 
the vulcanization he had sought for. But if he 
had not been seeking for it, he would not have 
recognized the transformation; so invention is 
usually rather discovery of a principle than hap- 
pening upon it. 

5. By unearned increment. This is a favorite 
phrase of socialists, who consider that the ad- 
vance in the value of property, through the growth 
of cities, for instance, should not be the exclu- 
sive right of the owner. 

The experiment of holding property by com- 
munities instead of by individuals has been fre- 
quently tried, as at Brook Farm and in the 
Shaker communities; but though some of the 
latter have been for long periods in successful 
existence, the general sentiment of mankind 
pronounces individual ownership best for the 
man and for society. 

Property must be respected, not only because 
it is a right of the individual but because the 
public good demands that industry, energy, and 
thrift should be rewarded. The care of their 
own property involves responsibility, and makes 
men careful, prudent, conservative. 

When property is held in such quantity as to 
more than meet the needs of the holder it is in the 
popular sense called wealth. How much consti- 



510 PROPERTY RIGHTS 

tutes this super-abundance is of course relative to 
the person. The saying of the late A. T. Stewart 
used to be considered a joke, that if a man had 
three or four millions he was just as well off as 
though he were rich ; but the number of men who 
have hundreds of millions is now considerable. 

The first condition of wealth is thrift or econ- 
omy. Whatever a man earns, if he spends more 
he will be poor, if he spends less he will grow 
wealthy. 

The second condition of wealth is probity (from 
Latin probare, to prove). Honesty is the best 
policy; there is no other capital so available as 
the reputation for square deahng. There seem 
to be exceptions, as where a man by sharp prac- 
tices accumulates a fortune; but usually the 
sharp man encounters another man still sharper, 
and the sharpest is likely to over-reach himself. 
The business of to-day is conducted on the 
assumption that men are honest, and the assump- 
tion is generally safe. 

The third condition of wealth is judgment, 
especially in buying and selling and investment. 
People who have saved money want it to bear 
interest, and it is not always easy to get a satis- 
factory rate of interest together with satisfactory 
security of principal. 

But all these conditions of wealth yield to the 
fundamental condition of an honest and wise 



WEALTH AND POVERTY 511 

government. If the government cannot protect 
a country from incursions from abroad or upris- 
ings within; if it is constantly at war; if it is 
unstable; if it imposes oppressive taxes; if it 
does not compel the payment of just debts when- 
ever possible, there will be no encouragement to 
accumulate property. 

Where there is wealth, there is usually pov- 
erty, not because of the wealth but in contrast 
with it. People who have not complied with 
the conditions of wealth, — who have not been 
industrious or thrifty or prudent — especially 
those who have been dishonest or vicious, do not 
have wealth, do not have even property. While 
poverty is usually the result of lack of business- 
qualities, it is sometimes only a misfortune. A 
workman may lose his arms or his sight, or be 
overwhelmed by sickness in his family. 

It is not a question of distribution. A wild- 
eyed stranger found admittance to Eothschild's 
office. " Your wealth ought to be divided equally 
over all France, ' ' he cried. 

" Very weU," said the banker, '^ here is your 
share; " and he gave him a 5-franc piece. 

Besides, great wealth makes great benefactions 
possible. Munificence (from Latin munus, a gift, 
and facere, to make) is possible only where 
wealth is great. At the beginning of the 20th 
century the gifts to education averaged a million 



512 PROPljRTY RIGHTS 

a week. There are men of wealth who regard 
their money as entrusted to them, and who labor 
harder to take wise care of it and to bestow it 
wisely than any workman in their employ. 

People who believe that the present division of 
wealth is so unequitable that it should be changed 
are called socialists. Some of them favor armed 
revolution ; some think the battle can be won at 
the polls. Some are anarchists (see page 252), 
not believing in any government; others believe 
the government should control all industries (see 
page 491). 

Wealth employed in industry is known as 
capital (from Latin caputs head, source), whether 
it be the farmer's store of provisions to carry 
him over to another harvest, or the millions re- 
quired to maintain a steamship line. The object 
of investing capital in this way is to make profit 
(from Latin proficere, to advance), the surplus 
which the product sells for above the cost. 

Frequently people who have money do not care 
to take the risks of a business venture, but are 
willing to lend their money. From such capi- 
talists young business men often borrow enough 
to start with by making use of their credit 
(from Latin credere, to trust). 

In this case the profit, is interest (from Latin 
inter and esse, to make a difference), and is not, 
as in the case of capital regularly invested, de- 



CAPITAL, INTEREST, USURY 513 

pendent upon the success of the business, but a 
fixed percentage, usually limited by law. In 
New York it must not exceed 6 per cent, and if 
more than that is exacted, even by consent of 
the borrower, it becomes usury (from Latin iiti, 
to use), and both interest and principle are legally 
uncollectible. ^ 

It is sometimes questioned whether interest- 
limiting and usury laws are wise, on the ground 
that the rate of interest depends on the law of 
supply and demand. If money is plentiful it 
will be lent at a low rate ; if it is scarce it will 
be lent only at a high rate, and if a low rate is 
fixed by law it will not bo lent at all. 

It is one of the propositions of socialists that 
the government should lend money to the people 
at a low rate of interest. But in this case the 
government would often lose both the principal 
and the interest, and the amount called for 
would be so great that paper money would have 
to be issued. As this increased in volume its 
value would grow less, so that eventually the 
borrowers would be no better off- than before. 

Sociahsts often demand, too, that the govern- 
ment shall establish a short day and high wages. 
Here again it is unwise to interfere with the law 
of supply and demand. The higher the cost of 
wages the smaller will be the profit of the busi- 

1 430:1837. 



514 PROPERTY RIGHTS 

riess, till eventually the profit will disappear, 
whereupon the business wiU stop and the labor- 
ers lose employment. 

All business is subject to competition (from 
Latin con, together, and petere, to seek), and 
unless it can furnish products of a superior qual- 
ity or at a lower price than its rivals it will 
languish. If trade-unions by excluding the un- 
worthy and incompetent from membership hold 
up a high ideal of workmanship, so as to pro- 
duce superior articles with economy of material 
and power, and this at a minimum cost, they 
benefit capital and labor alike. Thus all the 
efforts to do away with sweat shops, or private 
dwellings where garments and other goods are 
manufactured at low prices but under unhealth- 
f ul conditions, deserve the highest praise. But 
if they seek only short hours, high wages, and 
rapidity of work lowered to the ability of the 
poorer workmen, they will make it impossible to 
compete with other establishments. 

On the other hand if competition is stifled op- 
pression may result. If a monopoly (from Greek 
monos, alone, and polein, to sell) to manufacture 
salt were given to a single man, he could charge 
whatever price he chose, and as men must have 
salt he could make himself enormously wealthy. 

Some monopolies are inevitable. Patti's voice 
is a monopoly (see page 508) ; patents and copy- 



CORPORATIONS AND TRUSTS ' 515 

rights protect monopolies. But no one is com- 
pelled to pay five dollars to hear Patti sing, or 
to buy a patented article or a copyrighted book ; 
if the prices are fixed above the value the world 
does without them. When Grreat Britain put a 
tax on tea the Americans would not buy it, 
though the reason was not the price. But when a 
necessity is made a monopoly oppression results. 

Monopolies exist now principally through pri- 
vate corporations (see page 28), Avhich the New 
York constitution defines as " all associations 
and joint- stock companies having any of the 
powers of corporations not possessed by individ- 
uals or partnerships " (243). When these unite 
so as to put under a single head all or nearly all the 
producers of a certain article they become known 
as a trust. Most states have laws forbidding such 
combinations. The national law of 1890 makes 
illegal every combination in restraint of trade* 
among the states or with foreign nations; and 
that of 1891: declares it to be against public policy 
and illegal for two or more corporations, either 
of which is engaged in importing any article 
from a foreign country, to combine with intent 
to restrain free competition or increase the market 
price. ^ 

The New York constitution requires corpora- 
tions to be created under general laws (241). It 

1 Hadley, pages 12, 14, 50. 



516 PROPERTY RIGHTS 

forbids the use of the state credit to them (249). 

Hadley says: '^The narfie 'trust', which is 
popularly applied to all these large aggregations 
of capital, was somewhat accidental in its origin. 
It has, however, an appropriateness which few 
persons realize. The managers of every con- 
solidated enterprise, whether based on a contract, 
a trust agreement, or an actual consohdation, 
are exercising powers to benefit or injure the 
public which are analagous to those of a trus- 
tee. It has been said that all property is, in its 
wider sense, a trust in behalf of the consumer. 
But where competition is active, the power of 
using wrong business methods and unfair prices 
is so far limited that the chance for abuse of this 
trust is greatly lessened. It is only in the case 
of large combinations, with their discretionary 
power for good or evil, that the character of the 
trust reposed by society in the directors of its 
business enterprises makes itself really and truly 
felt."i 

' ' Greater strictness with regard to the forma- 
tion of new companies, increased publicity of 
accounts, clear recognition, legal and moral, of 
the responsibility of directors, who have made 
false reports to the stockholders — these are con- 
ditions precedent to any radical and thorough 
reform of existing abuses. ' ' - 

1 Hadley, page 43 : ^ page 46. 



CONTRACTS 517 

'^It is safe to say that in those industries 
^which are at all thoroughly monopolized public 
safety will generally demand that duties be 
placed on a revenue rather than a protective 
basis. The fact that an industry can thus organ- 
ize itself shows that it has outgrown the period 
of infancy. If it continues to demand a pro- 
hibitory tariff on its products, the presumption 
is that it is trying to make an arbitrary profit at 
the expense of the consumer. ' ' i (See page 297). 

The most important corporations are i^ow the 
railways ; and the interstate commerce commission 
(see page 404) was organized, under a law 
authorizing it to fix maximum rates between 
shipping points for the lines operating between 
them, and forbidding roads to charge more for 
carrying good\s a short distance than for a longer 
one including the same portion of the road. 
The law of 1898 makes the chairman of this 
commission and the commissioner of labor a 
board to bring about the arbitration of railway 
labor disputes. 

A contract (from Latin con, together, and 
trahere, to draw) is an agreement by one person 
with another to do or not do a certain thing. It 
may be express (from Latin ex, out, and premere, 
to press), when the terms are specified either 
orally or in writing; or implied (from Latin in 

1 Hadley, page 47. 



518 PROPERTY RIGHTS 

and plicare to fold), as when a man telephones to 
the grocer to send up a barrel of flour he implies 
that he will pay for it. 

Most contracts are oral, but the more impor- 
tant are usually written, and any contract not to 
be performed within a year, and some, like deeds 
and contracts to sell personal property over $50 
in value (see page 539), must be written. When 
a contract is in writing, neither party may claim 
that the intention was different from that ex- 
pressed. 

To be valid a contract must fulfil certain con- 
ditions. 

1. Both parties must be capable to contract. 
Idiots and lunatics can not be held to contracts. 
A contract with a minor is voidable, except that 
when he is without parent or guardian to supply 
them he may contract for necessaries, such as 
food, clothing, and education, and may be made 
to pay for them. Any contract made by a minor 
may be ratified by him after he becomes of age. 

Married women were at one time legally in- 
capable to make separate contracts, on the 
ground that husband and wife were one ; but in 
most states they may now buy, sell, or make 
any contract necessary for the management of 
their separate property, and may make any con- 
tract in connection with a business they are 
managing. ^ 

1 417:1897. 



PRINCIPAL AND AGENT 519 

In general a contract made by an agent (from 
Latin ago, to act, a general term for all em- 
ployes), is binding upon his principal, the man 
by whom he is employed (1) if the agent is act- 
ing within the authority granted to him, and 
(2) if at the time of making the contract he 
does so in the name of his principal ; otherwise 
the agent alone is bound. This applies to those 
who sell goods on commission (from Latin con, 
together, and niittere, to send), and to brokers. 

Even when an accident results from careless- 
ness of the agent, the employer is responsible 
for damages if the act was committed in the dis- 
charge by the agent of his authorized duties. 
Thus if a guest is injured on an elevator by care- 
lessness of the boy employed to run the elevator 
in a hotel, he can recover damages from the 
boy's employers. 

In partnership, where two or more persons con- 
tract to join their labor, skill, or money, the 
profits and losses to be shared in agreed propor- 
tions, it is the general rule that the act of one 
partner binds all in acts pertaining to the busi- 
ness in which they are engaged, but not further. 
Thus purchase by one of material for manufac- 
ture in the business would bind the others ; but 
purchase of a house for himself would not bind 
the others. In limited partnership, where per- 
sons become special partners, putting into the 



520 PROPERTY RIGHTS 

firm a certain amount and not being responsible 
beyond that, the terms of partnership must be 
pubUshed in the newspapers. 

2. There must be mutual assent. It takes two 
to make a bargain, and an offer made bj one 
does not bind the other. If the proposition is 
made by mail, a letter accepting it and mailed 
before a letter has been received retracting the 
proposal, makes the contract complete. 

Thus services which are rendered without re- 
quest afford no legal claim for payment, even if 
necessary, as when a man finds another's house 
on fire and saves much of the property, at pains 
and risk. There is, however, an exception when 
a vessel at sea is rescued. The rescuing vessel 
is entitled to salvage (from Latin salvare, to 
save). Even wrecked property cast upon land 
entitles the finder to salvage. ^ 

The assent must be given freely ; the contract 
is void if force or threats are used to extort it. 

It must also be with full knowledge. If fraud 
is used in misrepresenting or conceahng facts, 
the contract is voidable. 

3. There must be a consideration, something 
named and promised as a reason why each per- 
son enters into the agreement. A promise to 
give another person money or property without 



569:1890. 



MARRIAGE 521 

consideration is not a contract, and can not be 
enforced. 

4. It must be possible. A man may not bind 
himself to do what no man can do. A contract 
to prevent the tide from rising would be void. 
But if a man has undertaken to do something 
usually possible but prevented by accident, as by 
his breaking his leg, he is liable for damages for 
not fulfilling the contract. 

5. It must be legal. A contract to violate the 
law is void. Hence gambhng debts can not be 
collected by legal process. 

Of all contracts marriage is the most impor- 
tant. Of its form we have already spoken (page 
146). The New York law^ requires that both 
parties must be (1) at least 18 years old, (2) of 
good understanding, (3) consenting without force, 
duress, or fraud, and (4) not related as ancester 
and descendant, as whole or half brother and 
sister, as uncle and niece or aunt and nephew. 
Bigamy (from Latin his, twice, and G-reek gamos, 
marriage), or marriage with a second wife or 
husband while a first is still living, is not only a 
crime but no marriage, unless (1) the former 
marriage has been annulled for force, fraud, or 
other reason ; or dissolved by divorce (from Latin 
dis, apart, smdvertere to turn; see page 146); or 
the former husband and wife has (2) been sen- 

1 272:1898. 



522 PROPERTY RIGHTS 

tenced to imprisonment for life ; or (3) been al> 
sent for the past 5 successive years without be- 
ing known to the person now marrying to be 
Hving during that time. 

Polygamy (from GreekpoZifs, many, smdgamos), 
or marriage with more than 2 wives, is forbid- 
den by United States law, but is understood to 
be still practised by the Mormons in Utah. 

The husband must maintain his wife ; and he 
must pay all bills she contracts for necessary 
things unless she voluntarily leaves him. 

Contracts for insurance (from Latin z?2, se, with- 
out, and cura, care) are called policies (from same 
root as political; see page 28); the insured pays 
a fixed annual amount called a premium (from 
Latin prae, before, smdemeix, to buy). New York 
has a superintendent of insurance (see page 202). 

In lire insurance, the company agrees to pay, 
within the limit of the policy, all damage from 
fire and in consequence from fire, as from the 
wetting of goods caused by water used in put- 
ting out the fire. In marine insurance, if the 
vessel or cargo is damaged to half its value, the 
owner may give up the remainder and claim a 
total loss. In life insurance the company agrees 
to pay a specified amount upon the death of the 
insured. Endowment policies sometimes provide 
for payment of the amount during the fife of 
the insured, at a named date. 



INSURANCE 528 

' Policies may be made payable to the person 
taking out the pohcies or to others, but in the 
latter case the person to whom a policy is payable 
must be able to show some interest in the life or 
property, as of relationship or debt. This if 
without such claim a man should take out a 
policy upon the life of the president it would prac- 
tically be making a wager that the president 
would not live. If this were freely allowed a great 
many might become interested in his not living. 

When a contract is not fulfilled, the aggrieved 
party usually applies to the court for damages ; 
but sometimes the court may compel fulfilment, 
as when a man who has contracted to remove a 
brewery continues to use it, or a man who has 
contracted to sign a deed refuses to do so. A 
third remedy, in case there has been fraud in 
framing or evading the contract, is an action for 
tort (from Latin torquere, to twist), which is 
usually applied to damages arising otherwise than 
by contract. The constitution forbids that laws 
shall be passed impairing the obligations of con- 
tract (51). 

Damages for failure to fulfil a contract must 
be brought within a limited time. Thus after 6 
years a debt in New York becomes outlawed, 
and if judgment of the supreme court (see page 
226) is secured it must be collected if at all within 
20 years. 



524 PROPERTY RIGHTS 

At one time the law required all debts to be 
paid, and the debtor who failed to pay was im- 
prisoned. This is now uncommon, recovery of 
debt being possible only so far as property of the 
debtor can be discovered to levy upon. More 
than this, such property as is absolutely neces- 
sary to enable a man to continue his employment 
is exempt (from Latin ex^ out, and emere, to buy) 
from execution. In New York, in case of a 
householder having a family for which he pro- 
vides, necessary household furniture, working 
tools and team, professional instruments, furni- 
ture and library not exceeding in value $250, are 
exempt from levy and sale. ^ 

A person who owes more than he can pay is 
insolvent (from Latin in and solvere, to loose), and 
when this insolvency is legally announced he be- 
comes bankrupt (from Italian banca, bank, and 
rotta, broken). In English law anybody may 
become insolvent, but until 1861 only traders 
could become bankrupt. 

Congress is authorized (29) to establish laws 
on the subject of bankruptcies uniform through 
out the United States. The object of American 
bankrupt laws is two-fold: to insure equitable 
division among the creditors of such assets as 
exist ; and to enable the debtor on turning over 
all his property to start anew without a load of 

1116:1901. 



THE BANKRUPTCY LAW 525 

debts hanging over him which might discourage 
effort. In this respect the United States is more 
liberal than England, where the bankrupt loses 
both credit and social position — a bankrupt can 
not sit in parliament; and France, where he is 
also legally prevented from engaging in new 
business on his own account till he has paid his 
out standi ng obligation s . 

Under the law of 1898 any person (corporations 
are excepted) may become a voluntary bankrupt 
by filing a petition in the United States district 
court asking to be so adjudged; and, unless a 
wage-earner or farmer, may be adjudged an in- 
voluntary bankrupt for (1) conveying, concealing, 
or removing any part of his property with in- 
tent to defraud creditors ; (2) giving any of his 
creditors preference by conveying to them any 
of his property; (3) making a general assign- 
ment (from Latin ad, to, and signmn, sign; in 
which case if all the creditors agree to release 
the debtor upon the distribution of his property 
he is released from his legal obligations) of his 
assets for the benefit of his creditors; or (4) ad- 
mitting in writing his inability to pay his debts 
and willingness to be adjudged a bankrupt. 

Under this law a trustee of the bankrupt's 
estate is appointed, with powers like those of 
the executor of an estate (see page 542). 

Some states have also insolvency laws, reliev- 



526 PROPERTY RIGHTS 

ing from a liability to imprisonment for debt on 
surrender of all property, but these do not affect 
citizens of other states. 

Under the present bankruptcy law, most of 
the property found is often consumed in paying 
legal expenses, and the creditors get little satis- 
faction. While the law legally discharges the 
bankrupt, the moral obligation to pay his debts 
still remains, and in rare instances when fortune 
returns he repays his former creditors with 
interest. 

It is claimed that the present law has put an 
end to fraudulent failures by chattel mortgage 
(see page 537); and by confessions of judgment, 
where a civil suit is brought, no defence is 
offered, and judgment is rendered (see page 266), 
in both cases without consideration and to put 
the property into the hands of some friend who 
will afterwards turn it over to the bankrupt. 
Under the state law judgments held against the 
property in the order in which they were filed, 
so that when failures occurred there was a race 
among creditors to get to the county clerk's office 
first (see page 535). The assignor also had the 
privilege of ' ' preferring ' ' creditors, thus put ting- 
all his property into the hands of his relatives or 
fellow conspirators. * 

Negotiable paper includes all evidences of debt 
that bear upon their face the words ' ' or bearer 



55 



NEGOTIABLE PAPER 527 

'^ or order ", or other words that make the paper 
transferrable from one person to another, such 
as bank-notes, checks, drafts, promissory notes, 
etc. 

For bank-notes see page ttlG. 

Such paper is negotiable (from Latin negotium, 
business, from nec^ not, and otium, leisure) be- 
cause it can be readily transferred, and to make 
it more available it has some peculiar privileges. 
Thus if a uote payable to bearer or endorsed in 
blank is stolen and filled out, a purchaser who 
bought the note in good faith could collect it 
(compare page 530). Though this often works 
injustice it is on the whole a benefit, since the 
usefulness of negotiable paper is so great that 
all possible safeguards must be thrown about its 
purchase. 

A check is a request upon a bank where the 
drawer has money deposited to pay the amount 
named to bearer or to the order of a person 
named (see page ttlT). 

If a check is payable to the order of a person 
who desires to have it paid to some one else, he 
indorses (from Latin in, upon, and dorsum, back), 
it, (1) by writing his name on the back, which 
makes it payable to bearer; (2) by writing 
' ' pay to the order of ' ' the person to whom he 
desires to transfer it; or (3) by writing above his 

(see page 530). 



528 PROPERTY RIGHTS 

Should the check be drawn upon a bank, where 
the maker has insufficient funds to meet it, it is 
protested (from Latin pro^ before, and testis, a 
witness), and notice of the same sent both to the 
maker and to the person who presents it, with 
notary fees, usually of 11.25 or $1.50, to be paid 
the bank where it was presented. 

If however the indorser instead of simply writ- 
ing his name on the back of the note has quali- 
fied the endorsement by writing '' without re- 
course ", he is not liable for protest fees if the 
note is unpaid. 

A check may be upon request certified by the 
bank, in which case the bank becomes responsi- 
ble for its payment, even if it allows the de- 
posited funds of the drawer to be reduced below 
the amount. 

A due bill is an acknowledgement of indebted- 
ness, as: 

$50. Syracuse,, N. Y., Oct. 3, 1901. 

Due J. H. Smith fifty dollars, 

Henry Brown. 

It may be made payable in merchandise, as : 
138.50. Syracuse, N. Y., Oct. 3, 1901. 

Due A. L. Jones thirty-eight y^V dollars in 
merchandise. Andrews Brothers. 

A draft (see page 417) or bill of exchange is a 
written request made by one person to another 
to pay a certain sum of money to a third. The 
following is a common form : 



CHECKS, DRAFTS, NOTES 529 



z 

HI . 

HI > 

ID 3 

it 

d 



Syracuse, N. Y., Oct. 3, 1901. 

At sight pay to the order of the cashier 
of the National Bank of Syracuse one hun- 
dred seventy -five y^V dollars, and charge to 
my account. 

To Albany News Co. 

Albany, N. Y. C. W. Bardeen. 



Such a draft is only a request, and may be 
refused. The words ' ' protest waived ' ' are often 
inserted or attached to the draft so that if not 
accepted it may not be protested, incurring pro- 
test fees. 

If the Albany News Co. accepts the draft, it 
writes across the face something like, ''Accepted, 
payable at City National Bank, Albany News 
Co. per John Smith, ' ' after which it is practically 
a check drawn by them. 

A promissory note not only acknowledges in- 
debtedness but promises to pay it, usually on a 
specified time. 

To be valid a note must be a (1) written and 
(2) signed and (3) unconditional promise to pay^ 
(1:) a designated amount, (5) on demand or at a 
specified date. The date and that it is for value 
received are not required by New York law. ~ If 
it is to bear interest it must say so, otherwise 



1612:1897. ^ 6i2:i897. 



530 PROPERTY RIGHTS 

it will not begin to draw interest till after it is 
due. If payable on demand it will begin to bear 
interest after payment has been demanded. 

In order to be negotiable it must be made pay- 
able to bearer or to the order of the payee. On 
a note intended to be discounted it is customary 
for the maker to name the bank at which it is 
to be paid, in which case it may be jDresented 
there on that day, like a check. If there are no 
funds to meet it, it wiU be protested, like a check. 
In such case each endorser is liable, provided 
notice be sent to each. The last endorser looks 
to the one before him, and so on back to the 
maker of the note. Notice of protest must 
however be sent to the indorsers immediately in 
order to hold them responsible. See page 527. 

To be competent, the maker of a promissory 
note must be of age and not insane or an idiot. 
In some states married women are incompetent, 
but not in New York. ^ 

In case of forgery (see page 553) of negotiable 
paper, either in the name of the maker or en- 
dorser, or by changing the amount, it ceases to 
be negotiable and conveys no liability against 
the person whose name is forged, or, in case the 
amount is changed, who really signed it. Hence 
banks have to scrutinize carefully the checks 



417:1897. 



REAL ESTATE 531 

and notes presented, as they are liable for any 
mistake or fraud. 

In this country most real property (see page 
147), or real estate, as it is of tener called, is owned 
by estate in fee or estate in fee simple, the owner- 
ship being unqualified, and including the right 
to sell and to transmit. Estate for life gives the 
holder only a life tenancy. He has the income 
from it, but may not sell or mortgage it, or de- 
stroy the buildings, or otherwise injure its value. 

A widow's right of dower (see page 534) is an 
estate for hf e ; if a child dies owning real estate his 
father inherits estate for life in it. The heirs to 
whom the property will belong upon the death 
of the person holding estate for life in it, have 
future estate in property. For allodial tenure see 
page 149. 

An estate for Hfe is often bequeathed to a 
spendthrift or dissipated child, for whom it is 
desired to provide an income without giving 
opportunity to squander the property. This may 
be accomplished in another way by deeding the 
property to some responsible person in trust for 
the child, with powers varying according to the 
wiU. 

Adverse possession is possession of real prop- 
erty avowedly contrary to some claim of another 
in the same property. 

An estate for years is the right to possess and 



582 PROPERTY RIGHTS 

use real estate for a definite time, and is conveyed 
by a lease (from Latin laxare, to loose). If for 
more than a year the lease must be in writing. 

A lease is a contract and must specify^ a con- 
sideration, commonly known as rent (from Latin 
re and and dare, to give back, to pay), usually in 
money to be paid at stated periods, but some- 
times in services, in a share of the produce, in 
profits, or otherwise (see page 140). If the land- 
lord makes changes in the premises rendering 
them useless to the tenant, the tenant may with- 
draw without paying rent ; but if there is acci- 
dental destruction by flood or fire the rent is due, 
and neither landlord nor tenant is under legal 
obligations to rebuild a house destroyed by fire. 
The landlord is not obliged to make repairs un- 
less this is specified in the lease. The tenant 
must return the property in as good condition as 
he took it, except for ordinary wear and tear. 

If the property is sold, the change of owner-^ 
ship does not affect the rights of the tenant. Un- 
less restrained by the lease, the tenant has the 
right to assign his lease, in which case the new 
tenant pays rent to the landlord; or to sublet 
part of the premises, in which case the new 
tenant pays rent to the tenant. When the 
lease has expired, or if the tenant fails to pay or 
if he unlawfully injures the property, he may be 
evicted (from Latin e and vincere, to overcome) 



LEASES, APPURTENANCES 533 

by suit at law, through the sheriff. If the lease 
is for an indefinite period, the eviction must be 
preceded at least a month by notice to quit. 

The appurtenances (from Latin ad and pertinere, 
to belong) of real estate are the minor rights 
which are transferred with it upon change of 
ownership, such as buildings, fences, trees, 
springs, quarries. They may include right of 
way over other property — that is, the right to 
pass over real estate belonging to another, as to 
reach a spring or a field. Right of way is usu- 
ally granted by document, but when the privilege 
has been unquestioned for 20 years it becomes a 
right by usage. On the other hand if unused 
for 20 years it ceases. 

In the case of highways, the owner of adjoin- 
ing land owns the land to the centre of the road, 
and the pubhc has only right of way. When a 
highway is obstructed the public has right of 
way upon adjoining land. Boundary rivers, not 
navigable, are also owned to the middle line by 
the owners of adjoining property. In the case 
of streams flowing through the land, while the 
owner may use the water for water-power or 
otherwise he must not diminish its volume, or 
give the stream another direction ; nor may he 
by a dam cause the water to overflow his neigh- 
bor's land. 

In cities blocks of houses are often built with 



5 3 J: PROPERTY RIGHTS 

a party wall between them — that is a wall used 
for both houses, with timbers from each house 
inserted. In such cases neither may remove the 
wall without consent of the other. 

Trespass is entering upon another's premises 
without permission. 

The written instrument by which ownership 
of real estate is transferred to another is called 
a deed (from Latin dare, to give). It must be 
(1) written, (2) dated, (3) signed, (4) sealed, and 
(5) delivered ; and to be valid against other convey- 
ances of the same property must be (6) recorded 
in the office of the county clerk. It must also 
contain (T) a description of the property con- 
veyed, and (8) the name of the person to whom 
it is conveyed. If the property is owned by a 
married man, the deed must be (9) signed by the 
wife, or if she outHves her husband, she will at 
his death have a hfe-interest in J of the property. 

This right is called the right of dower (from 
Latin dotare, to endow), ' ^ the third part of aU the 
lands whereof her husband was seized of an 
estate of inheritance, at any time during the 
marriage. ' ' ^ This right is not affected by deed 
or mortgage unless given by consent of the wife, 
nor by judgment against the husband. 

Dowry is now distinguished in use from dower 
as the portion of a bride at marriage. 

1 547:1896. 



DEEDS 535 

The real property of any woman acquired be- 
fore br after her marriage, remains her separate 
property, not Hable for her husband's debts. She 
may dispose of her real and personal property 
by sale or by will. She may be a guardian, 
executrix, or administratrix (see page 542), and 
may give the necessary bonds. 

The importance of recording the deed is mani- 
fest; otherwise the same property might be 
deeded to different persons. Before recording it, 
the county clerk usually requires an acknowledge- 
ment, a certificate by notary public or other au- 
thorized officer on the back of the deed, that the 
maker appeared before him and acknowledged 
that he was the person who executed the deed. 
In New York this may be dispensed with, and 
the execution proved by a subscribing witness. 
After the acknowledgement no change whatso- 
ever must be made in the deed. 

In a warranty deed, the person conveying the 
property insures the title in the land conveyed 
against all persons whatsoever ; while a quit-claim 
deed simply conveys the interest which the 
grantor has in the land, whatever it may be. 
Executors, guardians, and administrators seldom 
give warranty deeds. 

The warranty is a covenant, and there may be 
other covenants in the deed, as that there are no 
taxes, mortgages, liens (from Latin ligare, to 



Deed with Full Convenants 

This indenture, made the day of in 

the year nineteen hundred and between 

of (insert residence) of the first part, and of 

(insert residence) of the second part : 

Witnesseth, that the said party of the first part, in considera- 
tion of dollars lawful money of the United States, 

paid by the party of the second part, doth hereby grant and re- 
lease unto the said party of the second part, his heirs and assigns 
forever (description), together with the appurtenances and all the 
estate and rights of the party of the first part in and to said 
premises. 

To have and to hold the above granted premises unto the said 
party of the second part, his heirs and assigns forever. And the 
said party of the first part doth covenant with said party of the 
second part as follows: 

First. That the party of the fii-st part is seized of said premises 
in fee simple, and has good right to convey the same. 

Second. That the party of the second part shall quietly enjoy 
the said premises. 

Third. That the said premises are free from encumbrances. 

Fourth. That the party of the first part will execute or pro- 
cure any further necessary assurance of the title to said premises. 

Fifth. That the party of the first part will forever warrant 
the title to the said premises. , 

In witness whereof, the said party of the first part hath here- 
unto set his hand and seal the day and year first above WTitten. 

In presence of: 

(536) 



DEEDS, MORTGAGES 537 

bind, a legal claim as security for debt or charge), 
or other incumbrances upon it. 

Upon payment of a fee an official search is 
made at the county clerk's office, which becomes 
a guarantee that (1) the title is vested in the per- 
son selling; and (2) there are no incumbrances 
upon the property, such as previous deeds, mort- 
gages, judgments against the seller, etc. 

The New York statutes ^ give a form of deed 
which complies with all provisions of the law. 
It is printed on the opposite page. 

A mortgage, given as security for money loaned 
or otherwise due, is in form somewhat like a 
deed and subject to the same conditions; but it 
is provided that the transfer of the property 
shall occur only in case the person giving the 
mortgage fails to pay as provided the interest 
and principal of the amount due. When the 
debt is paid the mortgage becomes void, and this 
satisfaction of the mortgage should be recorded 
in the county clerk's office, leaving the title clear 
in the original owner. 

If the conditions of the mortgage are not 
complied with, the holder may begin proceedings 
to foreclose (from French /ors, hors, outside, and 
clore, to close), that is to sell the property and 
devote the proceeds as far as necessary to the 
payment of the amount due. 

1277:1897. 



538 PROPERTY RIGHTS 

A chattel mortgage is a mortgage upon personal 
property (see page 151) or chattels (from Latin 
capitalis, chief, because cattle, the same word, 
used to form the principal part of a man's prop- 
erty; compare page 117). It is good against the 
grantor for 6 years, or if under seal for 20 years ; 
but against other purchasers it is good only for 
a year unless renewed ; and must be filed in the 
office of the town clerk, or if executed in towns 
where the office of county clerk is situated, in 
the office of the county clerk. 

A mortgage accompanies a l)ond (see page 46), 
a written instrument under seal by which the 
borrower acknowledges himself ' ' held and bound 
firmly ' ' to the lender for the payment of the 
money borrowed, or for the performance of 
other obligations named in the bond. 

The bonds hitherto referred to (pages 16, 111, 
etc.) have been guarantees of the persons giving 
the bonds that the officer will truly and well per- 
form all his duties, and pay over aU moneys re- 
quired in the bond, or that the person charged 
with the offence or indictment will appear when 
wanted. 

When the bond is given for the payment of a 
certain amount of money the penalty is usually 
fixed at double the amount of money required to 
be paid ; but the courts require the payment only 



SALES OF PERSONAL PROPERTY 589 

of an amount which will be a complete indemnifi- 
cation for damages sustained. 

The rights of eminent domain and escheat have 
already been explained (page 150). 

Eeal estate may always be located and found, 
but personal property may disappear (see page 
301), so there are some restrictions upon the sale 
of the latter. If at the time of the sale the 
property has ceased to exist, as in the case of a 
cow that has died or goods that are burned, the 
sale is void. Sales may be made however of 
articles which the seller expects to secure ; thus 
a farmer may sell his approaching crop of vrheat. 

The sale may precede delivery, and is complete 
when the contract is made. If the article is de- 
stroyed after sale and before delivery the loss is 
the buyer's. New York requires that a contract 
for a sale exceeding $50 must be in writing un- 
less the buyer receives part of the goods or pays 
part of the purchase money. ^ Entry upon the 
sale-book of an auctioneer is a written contract. 

The buyer is entitled to delivery only on pay- 
ment of the price, the seller in the mean time 
having a lien (see page 535) upon the property. 
But if the seller, deli vers the property before pay- 
mentj and without fraud on part of the buyer, 
he loses the lien and has simply an ordinary claim 



417:1897. 



540 PROPERTY RIGHTS 

against the buyer for the amount due. This is 
true of all goods sold on credit. 

If the property sold is not the property of the 
seller, as where it is stolen or found, the true 
owner may claim it at any time, except in the 
case of money and negotiable paper, such as 
promissory notes, government bonds, etc. A 
person who gets these for consideration, that is 
who pays something for them, and has no reason 
to suspect the seller does not own them, has title 
to them. 

In the sale of personal property there may be 
a warranty (see page 30) of title and of quality ; 
but without this the buyer is supposed to ex- 
amine the article for himself, and to stand the 
loss if it proves not to be what he expected. 

The property of people who die is usually 
transferred to others by will of the person de- 
ceased, who is caUed the test*ator (from Latin 
testis, a witness), and his will a testament. As 
a rule a man may leave his property as he pleases 
and to whom he pleases, and he may destroy any 
will, or change it in any way; but there are 
these limitations: 

(1) The testator must at the time of making 
the will be of full age and sound mind. If it 
can be shown that he was not of sound mind or 
that he was unduly influenced by some one, the 
will is declared void. 



WILLS 541 

Males 18 years of age may bequeath personal 
estate by will. ^ 

(2) The will must be written, and signed with 
their post-office addresses in the presence of the 
testator and of each other by at least 2 wit- 
nesses, in whose presence the testator signed it 
or acknowledged signing it, and declared it to be 
his last will and testament. 

An unwritten or iniiicapative (from Latin no- 
men^ name, and capere^ to take) will, one made 
by word of mouth before witnesses, is valid in 
the case of soldiers in service or sailors at sea. 

(3) Bequests to benevolent societies must have 
been made at least 2 months before the death of 
the testator. - 

(1) If the testator has wife or husband, chil- 
dren or parent living, not more than half the 
estate can be given to benevolent purposes^. 

Bequests of real estate to aliens are of course 
void (see page 150). 

If a second will is made that does not expressly 
revoke a former will, both stand except so far as 
contradictory, but where contradictory the latter 
prevails. It is best to begin the will : ' ' I make 
this as my last will and testament, hereby revok- 
ing aU former wills made by me. ' ' 

A will destroyed by the testator is void ; but if 
destroyed by any other person, it is vahd unless 

i782:i8()7. 2 319:1898. ^ 360:1860. 



542 PROPERTY RIGHTS 

it be proved by 2 witnesses that it was destroyed 
by direction and consent of the testator. The can- 
celling of a second will does not revive the first. 

A codicil (from Latin codex, the tablet of 
wood smeared with wax used for writing) is an 
additional will, changing it as the testator may 
desire, and must be executed with the same 
formalities. 

As the word ' ' bequeath ' ' applies properly to 
the personal estate and ' ' devise ' ' to real estate, 
it is safest to begin: '' I give, bequeath, and de- 
vise my estate and property, as follows : that is 
to say : " ' 

A person who inherits property is an heir (from 
Latin heres ; see page 478). 

If a person is named in the will to carry it into 
effect he is called the executor (from Latin ex out 
and sequi, to follow, compare page 264); if no 
person is named, or if the person named declines 
to serve, the surrogate appoints an administrator 
(from Latin ad and minister, a servant, see page 
464), to settle the estate in accordance with the 
provisions of the will. This is called giving let- 
ters testamentary or administrative. 

(5) The widow is entitled to right of dower 
(see page 534) ; but provision may be made for 
her in lieu of right of dower, in which case she 
has the option either to insist upon dower or take 
the provision made. 



INHERITANCE 543 

If he leaves no will, a person dies intestate 
(from Latin in, not, and testis, a witness), in 
which case the estate is divided according to the 
provisions of the law. In New York real prop- 
erty descends, aside from the right of dower (see 
page 534) (1) to Hneal descendants, children, 
grandchildren, etc. ; 

(2) to the father unless the estate came from 
the mother, when the father has a Hfe interest 
in it (see page 531); 

(3) to the mother, unless the intestate person 
left brothers or sisters or their descendants, in 
which case the mother has a Hfe interest in it; 

(4) to collateral relatives, brothers, sisters, etc., 
share and share ahke, no preference being given 
on account of age or sex. 

Personal property descends in the same order, 
without the limitations named. 



CHAPTEE L 

CRIMES A^'D PUNISHMENTS 

A man may be very wicked, and yet unpun- 
ishable by law. He may have vices (from Latin 
vitium, a vice), indulging his appetites inordin- 
ately; he may commit every day sins (from 
Latin sons, guilty) of omission and commission 
against divine law ; he may be indolent, drunken, 
untruthful, a wretch in his own eyes and in that 
of his neighbors, and yet be left undisturbed by 
the law so long as he does not violate its pro- 
visions. If his indolence leaves his family un- 
supported, if his drunkenness becomes a public 
disturbance, if his untruthfulness is shown 
when he is a witness in court, then the law will 
punish him ; not because he is wicked, which is 
a matter between him and his conscience, but 
because he is an offender against the laws estab- 
lished by the people for its protection (see page 
26-2). The purpose of criminal law is not the 
reformation of the offender but the protection of 
society. 

A crime is an. act or an omission to act forbid- 
den by law. Under the old English common law 
(see page 254), offences against the law were 

(544) 



FELONIES; MISDEMEANORS oio 

divided into 3 classes: (1) those punishable by 
death were called crimes (from the root of Latin 
cernere^ to discern) ; those punishable by forfeit- 
ure of goods were called felonies (from Old Eng- 
lish /eZ, cruel), and were often also punishable by 
death ; (3) those deemed worthy of a lighter pun- 
ishment were called misdemeanors (from Latin 
m^s, and minari^ to threaten). 

These distinctions have largely disappeared. 
The New York criminal code divides all crimes 
into 2 distinct classes: 



felonies 

punishable by death or 
by imprisonment in 
state prison. 



misdemeanors 

punishable by impris- 
onment in county jail 
or penitentiary. 



For both felonies and misdemeanors fines may 
also be inflicted, sometimes in place of and some- 
times in addition to imprisonment. 

The usual limit of punishment for misde- 
meanors is imprisonment for not to exceed 1 
year, or by fine not to exceed |500, or by both. 
Some offences are punished also by removal from 
office or by disquahfication to hold any place of 
trust, honor, or profit, under the state (see p. 54:9). 

At common law an infamous crime (88, 117, 
131) was one upon conviction of which a person 
became incompetent as a witness, ^ including 
treason, perjury,- larceny, knowingly receiving 

113 Dill. 275. 2 4 Saw. 211. 



5^6 CRIMES AXD puxishme::ts 

stolen goods, and all crimes which create a vio- 
lent presumption against the truthfulness of the 
party under oath, ^ but not including misde- 
meanors. 2 

As testimony is the basis of legal proceedings, 
the law is severe against perjury (from Latin per, 
though, over, and jurare, to swear), declaration 
under oath of what a person knows to be untrue. 
If a perjurer has taken the oath before a national 
official he is punishable by fine not to exceed 
12,000, and imprisonment for not more than 5 
years, and is thereafter incapable of giving tes- 
timony in any national court. ^ 

Subornation of perjury is instigating another 
to swear falsely, and is subject to hke punish- 
ment. 

The greatest of crimes is that committed 
against the state, called treason (from Latin tra- 
dere, to betray). It may consist in levying war 
against the United States, or in adhering to its 
enemies, gi^dng them aid and comfort (70). The 
criminal code of New York adds as a form of 
treason, combining to overthrow the govern- 
ment by force ; but the United States supreme 
court has ruled : ^ ' However flagitious may be 
the crime of conspiring to subvert by force the 
government of our country, such conspiracy is 
not treason. To conspire to levy war and actu- 

1 11 Met. 302. 2 Cent. L. J. 205. ^ -g. s. Rev. Stat. S5392. 



547 

ally to levy war are distinct offences. ' ' Of con- 
structive treason we have already spoken (page 
141). 

No person may be convicted of treason unless 
on the testimony of 2 witnesses to the overt act, 
or on confession in open court (70). 

It is punishable by death ; but by law of 
1862 the sentence may be imprisonment for not 
less than 5 years and a fine of not less than 
110,000 (seepage 140). 

Aaron Burr was tried for treason in 1807, but 
acquitted. Gen. Hill surrendered Detroit with- 
out resistance in 1812; he was tried for treason, 
found guilty, and pardoned by President Madi- 
son. John Brown was tried in 1859 for murder 
and treason, but was found guilty of murder and 
hanged for that. Jefferson Davis was captured 
in 1865 and confined in Fortress Monroe. In 
1867 he was charged with treason and admitted 
to bail; in 1868 he was discharged. 

After the civil war political disabilities were 
laid upon many of the southern leaders (101), 
but these were removed by congress in 1894. 

Anarchy (see pages 252, 512) is universal trea- 
son, a purpose to destroy all governments. When 
President McKinley was assassinated in 1901 by 
an anarchist, it was recalled that within 7 years 
a president of France, a king of Italy, an em- 
press of Austria, and a prime minister of Spain 



548 CRIMES AND PUNISHMENTS 

had met the same fate. In his first message 
President Eoosevelt recommended legislation, 
saying that anarchists should be kept out of 
this country ; that if found here they should be 
promptly deported to the country whence they 
came ; and that far-reaching provision should be 
made for the punishment of those who stay. 
He said : 

' ' Anarchy is a crime against the whole human 
race, and all mankind should band against the 
anarchist. His crime should be made an offence 
against the law of nations, hke piracy and that 
form of man-stealing known as the slave trade; 
for it is of far blacker infamy than either. It 
should be so declared by treaties among aU civil- 
ized powers. Such treaties would give to the 
federal government the power of deahng with 
the crime. ' ' 

Among crimes against the elective franchise 
are the following, all misdemeanors : 

attempting to vote at an election or caucus, 
when not entitled to do so ; 

attempting to vote more than once ; 

attempting to vote 2 or more ballots, or to add 
ballots to those already cast ; 

making a false declaration at enrolment ; 

as an election officer making false returns : 

doing any fraudulent act to affect the result 



BRIBERY; EXTORTION 549 

of an election or caucus, including bribery of or 
intimidation of voters or election officers ; 

using authority as an election officer of the 
state to collect political assessments from sub- 
ordinates ; 

faihng as a candidate to file an itemized state- 
ment showing in detail all the moneys contrib- 
uted or expended by him in aid of his election. 

Among crimes against the executive power of 
the state are : 

assuming office without having qualified ; 

offering reward for appointments ; 

resisting officers : all misdemeanors. 

Offering to bribe an executive officer or as 
executive officer asking or receiving a bribe, is a 
felony (283), punishable by not to exceed 10 years 
in state prison or a fine of $5,000, or both. In 
addition the officer is forever disqualified from 
holding public office in the state. Any officer or 
subordinate who asks or takes unlawful fees is 
under similar penalty (282), and the crime is 
known as extortion (from Latin ex and torquere, 
to twist). No public officer is even permitted to 
ask or accept a railway pass (285). 

Crimes against the legislature include prevent- 
ing the meeting or organization, compelling 
either house to pass or not to pass a bill, alter- 
ing the draft of a bill, and bribery, which are 
felonies; and disturbing the sessions, intimidat- 



550 CRIMES AND PUNISHMENTS 

ing the members, refusing to appear when called 
as a witness or to testify, which are misde- 
meanors. 

Crimes against the judiciaiy include bribery, 
injury to public records, offering for record 
forged instruments, and perjury, which are 
felonies ; and embracery (an attempt to influence 
court or jury by promises, etc.), destroying evi- 
dence, preventing witnesses from attending, res- 
cue or concealment of prisoners, and misconduct 
of officers, which are misdemeanors. 

A citizen who refuses when commanded by 
him to aid an officer making an arrest is guilty 
of a misdemeanor. After the governor has is- 
sued a proclamation declaring a county to l)e in 
a state of insurrection, a person who interferes 
with the law or refuses when summoned to aid 
in sustaining it is guilty of a felony. 

To compound (from Latin con, together, and 
ponere, to set) crimes, that is to accept a bribe 
to conceal a crime, is a felony if the crime was 
such; otherwise a misdemeanor. 

Contempt of court may be shown by disorderly 
behavior in court, attempt to deceive the court, 
refusal to be sworn as a witness, publication of 
a grossly inaccurate account of its proceedings, 
or resistance to its mandates. It is commonly 
punished by the judge on the spot, by fine or 
imprisonment. 



HOMICIDE 551 

Of crimes against the person suicide (from 
Latin sui, one's self and caedere, to slay), the 
intentional taking of one's hfe, is not punished; 
but an unsuccessful attempt is a felony ; and to 
assist another to suicide is homicide (from Latin 
homo man, and caedere to kill), the killing of one 
human being by the act, procurement, or omission 
of another. When the act is not designed to kill it 
is man-slaughter ; but it is murder (from Latin 
mors, death) in the 1st degree, when without 
excuse, and (a) deliberate, and premeditated ; (b) 
or by an act regardless of human life, as in 
wrecking a railway train ; (c) or by a person com- 
mitting a felony upon or affecting the person 
killed ; or (d) while committing arson in the 1st 
degree (see page 553). It is murder in the 2d 
degree, when designed to kill, but without deliber- 
ation and premeditation. 

Homicide often results from what was intended 
for assault (from Latin ad, upon, and salire to 
leap) and battery (from Latin batuere, to strike), 
the usual legal term for attack with the fists or 
such a weapon as a cane or club, intended to 
injure but not kiU. 

To kidnap a person is to seize him against his 
will and carry him away. 

Homicide may be lawful. As we have already 
seen (page 492) a man may kill another in self- 
defence, and he may do so to prevent an atrocious 



552 CRIMES AND PUNISHMENTS 

crime. An officer may kill a prisoner if neces- 
sary in the effort to take him or to prevent his 
escape. Homicide is justifiable when it occurs 
through -unavoidable accident. In case of death 
by railway accident the New York laws at one 
time limited the damages by death to $5,000, 
but the present constitution forbids statutory 
limitation (129). 

Of other crimes against the person slander and 
libel have been described on page 144, and bigamy 
on page 521. 

Of crimes against property rights, larceny 
(from Greek latris, sl hired servant) or theft is 
stealing by stealth. When the value of the 
goods stolen is less than $25 it is petit larceny 
(112) and a misdemeanor; otherwise grand lar- 
ceny, and a felony. When the property stolen 
had been entrusted to the care of the thief, the 
theft is called embezzlement. Defalcation (from 
Latin de and falx, a sickle) is a form of embezzle- 
ment. Robbery is taking property away by 
force, while to break into a house in the night 
for purposes of theft or other crime is in itself 
burglary. 

Piracy (from Greek peira, an attempt) is rob- 
bery on the high seas, which means the ocean 
and waters along the coast beyond low-water 
mark. Congress alone has power to define and 
punish piracies, felonies, and offences against 



THEFT; ARSON; FORGERY 553 

the law of nations committed on the high seas 
(35). The criminal jurisdiction of the states 
extends only to their borders (67) and there must 
be some authority to punish offences on the ocean. 

Arsou (from Latin ardere, to burn) is the mali- 
cious burning of a building belonging to another. 
To burn an inhabited dwelling in the night time 
is arson in the 1st degree, and punishable as 
murder in the 1st degree (see page 551). 

Forgery (from Latin fabricare, to fashion) is 
signing the name of another person to a written 
instrument or passing off an imitated instru- 
ment for an original, or making some alteration 
in an instrument already signed. Counterfeiting 
(from Latin contra, against, and facere, to make, 
originally to make a likeness) is the same sort of 
fraud applied to coin, to bank-notes, to bonds or 
other securities, or to articles other than written 
instruments. Congress is empowered to provide 
for the punishment of counterfeiting the national 
coin and securities (31). The courts have con- 
strued that this does not deprive the state courts 
of power to punish the same offence. 

A person not present but in any way con- 
cerned in the commission of a crime is an acces- 
sory (from Latin ad, toward, and cedere, to move), 
before the fact, if he counsels or commands the 
deed ; after the fact, if he shelters the offender or 
aids him to escape. 



554 CRIMES AND PUNISHMENTS 

Attempts to commit crime are commonly nomi- 
nally punishable as though successful, but usu- 
ally the sentence is lighter. 

Any one who sees a crime committed may 
arrest the offender ; but otherwise only an officer 
provided with a warrant may do so (see page 
137). 

The judicial system of any state or country 
extends only over its own territory. A New 
York sheriff can not arrest a man in New Jer- 
sey ; an American warrant has no effect in Eng- 
land. So criminals who escape from the state or 
country against whose laws they have offended 
would be safe from punishment were it not for 
extradition (from 'Latin extra, outside, and dare, 
to give), the delivery of fugitives from justice to 
the state whose laws they have offended. If a 
man has committed murder in New York and 
crosses the line into Pennsylvania, the governor 
of New York makes upon the governor of Penn- 
sylvania a requisition, a formal demand that the 
criminal be arrested and held, accompanied by 
indictment or affidavit charging the criminal 
with crime. It is the duty of the governor of 
^Pennsylvania to cause the fugitive to be arrested 
and to deliver him to the accredited officer from 
New York (74). i 

Between nations extradition occurs only by 

1 U. S. Rev. Stat. S 5278. 



EXTRADITION 555 

express treaty (see page 467). ^ When a treaty 
of extradition exists with another nation, any 
subject of that nation charged with any of the 
crimes named in the treaty may be brought be- 
fore any United States judge or commissioner or 
judge of any state court of record (see page 268), 
and examined. If the evidence seems sufficient 
to warrant, the prisoner is committed to jail, 
and a copy of the testimony is sent to the secre- 
tary of state, who upon requisition of the foreign 
authorities will issue a warrant for surrender of 
the prisoner to such authorities. ^ Treaties of 
extradition differ in detail; thus French crimi- 
nals can be extradicted only by act of congress. 
Deserting seamen may be delivered up under 
similar conditions. ^ 



1 Kent, i.39 n. 2 xj. s. Rev. Stat. § 5270. ^ § 5330. 




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A1I3 AlXnOD 



Court of Appeals 
Supreme Court 
Board of Claims 
Attorney-General 
Court of Impeachment 
(Senate and Ct. of Appeals) 


Supreme Court 
Circuit Courts 
Districft Courts 
Court of Claims 
Attorney-General 
Court of Impeachment 

Senate 
Juries 


Supreme Court 
District Courts 
I^robate Courts 

(in each County) 
Justices of the Pea(;e 
Juries 


3 
o 

ll 


1 

Court of Chancery 
Queen's Bench 
Common Pleas 
Exche(iuer 

High Court of Justiciary 
Circuit Courts in the Rural 
Districts 




5- 


GovKitNOi: 

Secretary 

Auditor 

'i'roiisurer 

Sup"t<)f Common Schools 


c 


King (or Queen), who rules 
through the Cabinet or Min- 
istry ; namely : 

Prime INFiuister or Premier 

Lord Chancellor 

Lord Privy Seal 

President of the Council 

Home Secretary 

Chancellor of the Exchequer 
and others 


ll 


II 

G 5 ?> 

it 


111 

ci 
Ir. 


|i 

©"3.= 
3 51 

ft 3^ 3 


1 J 



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aivxs saxYxs a»x.i a.jihx 



•103 

JO 

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TOWN DIRECTORY. 

Name. Term, expires. 



Supervisor. 
Clerk. 



Justices 



Highway 
Commissioners 



Overseers 

of 
the Poor 



Collector. 



Constables \ 



Inspectors 

of 

Election 



Sealer of Weights and Measures 

NoTB.— Write the names of town officials in same manner as county. 
558 



COUNTY DIRECTORY 

Name Term expires. 

Sheriff.. 

Judge 

Surrogate 

Treasurer 

District Attorney : 



Coroners 

I 
I 



Superintendents | 
of the Poor \ 

r 

Assembly -J 

I 

I 



School 
Commissioners 



Loan ( 

CommissiojieFs ( - 

Chairman Board of Su pervisors 

Clerk Board of Supervisors 

Member House of Representatives No. dist. 

State Senator No. dist. 

Note— Write the names of the several officials opposite the titles for ref- 
erence, changing them as other officials are elected or appointed. 
(559) 



TABLE OF DISTEICTS 



unit 



nation 



state. 



'county 



town . 



city. . . 
village. 



district 



circuit court, 
territories. . . 

states 

district court, 
congressional 

judicial 

appellate. . 
assembly. . . . 

senate 

counties 

assembly. . . . 
c ommissioner 

cities 

villages 

towns 

election 

road 

school 

ward 



dicided by 



jurisdicfn page 



congress nation 280 

congress nation. . . . 358 

congress state 359 

congress nation .... j2T8 

legislature* nation. . . . 445 

legislature state ;263 

'legislature state j271 

llegislature state 1227 

jlegislature state 1229 

[legislature county. . . . | 62 

jlegislature state |227 

: supervisors state i 73 

jlegislature city 101 

llegislature village [ 87 

isupervisorsf town 1 25 

jtown board ;town j 48 

j highway commissioners town ...:.! 42 

school commissioner:}:. . state ' 74 

jlegislature .... : city 101 

jlegislature village. ... 87 



*The number of districts is fixed by congress. 

f The legislature may erect new towns ( 1 44). 

:}: Supervisor and town clerk are sometimes associated. 

** Sometimes. 



(560) 



IE STATES OF XI 



UNION 



States 



31. 



Delaware 

Penasylvania . . . 

New Jersey 

Georgia 

Connecticut 

Massachusetts... 

Maryland 

South Carolina. . 

New Hampshire. 

Virginia 

New York 

North Carolina.. 

Rhode Island 

Vermont* 

Kentucky* 

Tennessee 

Ohio 

Indiana 

Mississippi 

Illinois 

Alabama 

Maine* 

Michigan 

Wisconsin 

West Virginia* . . 

Louisiana 

Florida 

Arkansas 

Xrissouri 

Iowa 

Kansas 

Nebraska 

North Dakota 

South Dakota 

Montana 

Wyomlnij 

Californiat 

Nevada 

Utah 

Oregon 

Washington.... .. 

Idaho 

Minnesota 

Colorado 

Texasi 



Populati'n 
1900 



184.735 

6.302.115 

1.883,669 

2.216.331 

908,420 

2,805.346 

1,188,044 

1,340.316 

411.588 

1,854.184 

7,268,894 

1,893,810 

428,556 

343,641 

2,147.174 

2.020,616 

4.157.545 

2.516.462 

1.551.270 

4,821.550 

1.828,697 

694,466 

2.420,982 

2.069.042 

958,800 

1,381.625 

528,542 

1,311,564 

3,106.665 

2.231,853 

1,470.495 

1,066.300 

319,146 

401.570 

243.329 

92.531 

1,485,053 

42.335 

276:749 

413.536 

518.103 

161,772 

1,751.394 

539.700 

3,048.710 



Area 
Sq. Mi, 



2,050 
45.215 

7^815 
59.475 

4,990 

8,315 
12.210 
30,570 

9,305 
42.450 
49.170 
52,250 

1,250 

9,565 
40.400 
42,050 
41.060 
36,350 
46,810 
56.650 
52.2.50 
33.040 
58,915 
56.040 
24,780 
24,780 
58.680 
53.850 
69,415 
56.025 
82.080 
77.510 
70,795 
77,650 
146.080 
97.890 
158.360 
110.700 
84,970 
96.030 
69,180 
84.800 
83.365 
103,925 
265.780 



1789 
1789 
1789 
1789 
1789 
1789 
1789 
1789 
1789 
1789 
1789 
1789 
1790 
1791 
1792 
1796 
1803 
1816 
1817 
1818 
1819 
1820 
1837 
1848 
1863 
1812 
1845 
1836 
1821 
1846 
1861 
1867 
1889 
1889 
1889 
1890 
1850 
1864 
1896 



1890 
1858 
1876 
1845 



Ori< 



Original 



From original 
territory 



By purchase 



By conquest 



By discovery 
and 
cession 
Mixed 

Adm'd republic 



Territories 



New Mexico, 

Arizona 

Oklahoma... 

Indian 

Hawaii 

Alaska 



Populati'i 
1900 



195,310 
122,931 
398,331 
392,060 
154,001 
63,592 



Area 
Sq. Mi 

122,580 

113,020 

39,030 

31,400 

6.4^9 

590.884 



Territories 



Porto Rico 

Dist. of Columbia. 
Colonies 

Cuba 

Philippine Isl'nds 



Populati'n 
1900 



953,243 

278.718 



1,572,797§ 
9,000.000§ 



Area 
Sq. Mi. 



3,531 
70 



45,884 
114,361 



1=:^ * Formed from other states, t Admitted without having been a terri- 
torv. t Annexed as a state. All the other new states, 14-45, were territories 
before being admitted. § 1899. §§ Estimated. 



GOVERNOES AND LIEUT. GOVERNORS 

GOVERNORS LIEUTENANT GOVERNORS 

George Clinton Pierre Van Cortland 1777 

John Jay Stephen Van Bensselaer 1795 

George Clinton Jeremiah Van Rensselaer 1801 

Morgan Lewis John Broome 1804 

Daniel n Tomnkins* ' j De Witt Clinton 1807 

l^amel U. 1 ompkms* ^ j^^^,^ Taylor 1813 

De Witt Clinton John Taylor 1817 

Joseph C. Yates Erastus Root 1823 

Dp Witt CliTiton+ 3 James Tallmadge 1825 

De Witt Clmtont -j A^'athaniel Pitcher 1827 

Martin Van BurenJ '. ..Enos T. Throop 1829 

Enos T. Throop Edward P. Livingston 1881 

AVm. L. Marcy John Tracy 1833 

Wm. H.Seward Luther Bradish 1839 

Wm. C. Bouck Daniel L. Dickinson 1843 

Silas Wright Addison Gardiner 1845 

John Young Hamilton Fish 1847 

Hamilton Fish George W. Patterson 1849 

W^ashington Hunt Sanford E. Church 1851 

Horatio Seymour Sanford E. Church 1853 

Myron H. Clark Henry J. Raymond 1855 

John A. King Henry R. Selden .' 1857 

Edwin D. Morgan Robert Campbell 1859 

Horatio Seymour David R. Floyd Jones 1863 

T>« >,„„ T7<^„.^r. i Thomas G. Alvord 1865 

Reuben Fenton | Stewart L. Woodford. 1867 

John T. Hoffman Allen C. Beach 1869 

John A. Dix John C. Robinson 1873 

Samuel J. Tilden. Wm. Dorsheimer :1875 

Lucius Robinson Wm. Dorsheimer 1877 

Alonzo B. Cornell George G. Hoskins 1880 

Grover Cleveland ** David B. Hill 1883 

David B. Hill Edward F. Jones 1886 

David B. Hill. Edward F. Jones 1889 

RoswellP. Flower Wm. F. Sheehan 1892 

Levi P. Morton Charles T. Saxton 1895 

Frank S. Black Timothy L. Woodruff 1897 

Theodore Roosevelt Timothy L. Woodruff 1899 

Benjamin B. Odell Timothy L. Woodruff 1902 

* Resigned in 1817; t died in 1828; i resigned in 1829: ** resigned in 1885: 
in each case the lieutenant governor filled out the term. 

(562) 



NEW YORK STATE OFFICIALS. 

ELECTED BY THE PEOPLE 

Term expires. 

Governor. Benjamin R. Odell Dec. 31, 1902 

Lieut. -Gov.. Timothy L. Woodruff " 

Secretary of State. John J. McDonough " 

Comptroller, " 

Treasurer, John B. Jaeckel " 

Attorney-General. John C. Davies -. '■ 

State Engineer, Edward A. Bond " 

APPOINTED BY GOVERNOR AND SENATE 

Term expires. 

Sup't of Insurance. Francis Hendricks. Syracuse Feb. 11, 1903 

*' '' Banking, Frederick D. Kilburn. Malone Mar. 29, 1902 

" •' Prisons, Cornelius V. Collins, Troy Apr. 17, 1903 

•' " Public Works, Charles Spencer Boyd, Brooklyn Dec. 31, 1903^ 

Health officer of the Port of New York, Alvah H. Doty. $12,500. 



CHARITABLE AND CORRECTIONAL INSTITUTIONS. 



i(See Map on opposite j^age.) 



Prisons 
8. Auburn. 12. Dannemora. 

21. Sing Sing. 
Reformatories.— i^or Boys and Men. 
25. Elmira. 17. Napanock. 

22. New York (House of Refuge.) 
5. Rochester Industrial School. 

For Women. 
20. Bedford Station. 
16, House of Refuge, Hudson. 

Institutions for the Blind. 
2. Batavia. 22. New York. 

Institutions for Deaf-Mutes. 
1. Buffalo. 22. Fordham (N. Y.). 

11. Malone. 22. New York. 

5. Rochester. 13. Rome. 



Asylums for the Fekble-Mindbd. 
9. Syracuse. [Newark. 

6. Custodial Asylum for Women, 

Asylums for the Insane. 
8. Auburn (Insane Criminals). 

Matteawan (Insane Criminals.) 

Binghamton. 1. Buffalo. 

Middletown (Homeopathic.) 

Ogdensbnrg. 

Ovid (Willard Asylum.) 

Poughkeepsie. 

Rochester. 14. Utica, 

Miscellaneous. 

Asylum for Inebriates, Bingham 'n 

Soldiers' and Sailors' Home,Bath. 

Masonic Home, Utica. [yea. 

Craig Home for Epileptics, Son- 



(565) 



566 OTHER NEW YORK OFFICERS 

JUDGES OF THE COURT OF APPEALS. (See pagre 2T3) 

The Court consists of a Chief Judge and 6 Associate Judges, who hold 
office 14 years. 

Alton B. Parker, Chief Judge 1906 

John Clinton Gray, Associate 1902 



Dennis O'Brien, 
Edward T. Bari;lett, 
Albert Haight, 
Celora E. Martin, 
Irving G. Vann, 



.1903 
.1907 
.1908 
.1909 
,1910 



Associate judges, temporarily appointed, according to constitutional 
amendment adopted by vote of the people, Nov. 7, 1899 (210), William E. 
Werner, Edgar M. Cullen. 

The court for the trial of impeachment of State officers is composed of 
the president of the senate, the senate, and the judges of the court of 
appeals. See page 230. 



INDIAN RESERVATIONS. 

{See Map on op})osite page) 
7. Allegany. 3. Onondaga. 5. Shinnecock. 1. Tuscafora. 

€. Cattaraugus. 4. St. Regis. 2 Tonawanda. 



JUSTICES OF THE SUPREME COURT 569 

SUPREME COURT OF NEW YORK. (Pp. 263-271.) 

With date of expiration of term of service. 
1st. The city and county of New York 

Henry Bischoff, jr., N. Y. City.. . . 1903 George P. Andrews, N .Y. City.. .. 1912 
John J. Freedman, '" 1904 James Fitzgerald, " 1912 

" 1904 David Leventritt, " 1912 

Henry A. Gildersleeve, " 1905 George C. Barrett.t " 1913 

Geo. L. Ingraham.t '■ 1905 -lames A. O'Gorman " 1913 

Leonard A. Giegerich, " 1906 Edward Patterson,t " 1914 

Miles Beach, " 1907 P. Henry Dugro. " 1914 

Charles H. Tru ax. " 1909 Morgan J. O'Brien, t " 1915 

Charles F. MacLean, " 1909 James A. Blanchard, " 1915 

Francis M. Scott, " 1911 John Proctor Clarke, " 1915 

Charles H. Van Brunt,* " 1911 Samuel Greenbaum, " 1915 

2d. Rich'd, Suffolk, Orange, Kings, West'r, Queens, Rock'd, Put'm, Dutchess. 

William J. Gaynor, Brooklyn 1907 Michael H. Hirschberg,t Newb'g.l910 

Edgar M. Cullen.1i Brooklyn . . . .1908 Garret J. Garretson, Flushing. . . 1910 
William D. Dickey. Brooklyn. . . .1909 Samuel T. Maddox, Brooklyn. . ..1910 

Wilmot M. Smith. Patchogue ...1909 Willard Bartlett,+ Brooklyn 1911 

Martin J. Keogh. New Rochelle.. 1909 Joseph T. Marean. Brooklyn 1912 

Wm. W. Goodrich,* Brooklyn.... 1910 Almet F. Jenks. Brooklyn 1912 

3d. Columbia, Rensselaer, Sullivan, Ulster. Albany, Greene, and Schoharie. 

Edgar L. Fursman, Troy 1903 Emory A. Chase,§ Catskill 1910 

D. Cady Herrick.+ Albany 1905 James A. Betts 1912 

Alden Chester, Albany 1909 Aaron V. S Cochrane, Hudson. . 1915 

4th. Warren. Saratoga. St. Lawrence, Washington, Essex, Clinton, Frank- 
lin. Montgomery, Hamilton, Fulton, and Schenectady counties. 
S. Alonzo Kellogg t Plattsburgh.1904 Chester B. McLaughlin. i P. H'nry.l909 

Leslie W.Russell, Canton 1905 Jas.W. Houghton, t Saratoga Spr.1914 

Martin L. Stover, Amsterdam ... 1905 Edgar A. Spencer, Gloversville .1915 
5th. Onondaga, Jefferson, Oneida. Oswego. Herkimer, and Lewis counties. 

Milton H. Merwin, Utica 1902 Frank H. Hiscock.t Syracuse .... 1910 

Mauricfe L. Wright, Oswego 1905 Pardon C.Williams,t Watertown. 1911 

Peter B. McLennan,t Syracuse. . . 1906 William S. Andrews, Syracuse. . . 1913 
William E. Scripture. Rome 1909 

6th. Otsego, Delaware, Madison, Chenango, Tompkins, Broome, Chemung, 
Schuyler, Tioga', Cortland counties. 

Walter Lloyd Smith, Elmira 1902 Albert H. Sewell, Walton 1914 

George F. Lyon. Binghamton. ..1909 Charles E. Parker,* Owego 1915 

Burr Mattice, Oneonta 1910 Gerritt A. Forbes. Canastota 1915 

rth. Livingston Ontario, Wayne, Yates, Steuben, Seneca, Cayuga, Monroe. 

John M. Daw, Rochester 1902 Edwin A . Nash, Avon 1909 

John F. Parkhurst. Bath 1908 Adelbert P. Rich, Auburn 1914 

W^m. E. Werner,! Rochester 1908 Wm. H. Adams,+ Canandaigua. . 1915 

James W. Dunwell, Lyons 1909 

8th. Erie. Chaut.. Catt., Orleans, Niagara, Genesee, Allegany, Wyoming. 

Henrv A. Childs. Medina 1901 Alfred Spring.t Franklinville .... 1909 

Warren B. Hooker. Buffalo 1903 John Woodward.! Jamestown . .1910 

Daniel J. Kenefick. Buffalo... .1906 Truman C. White 1913 

Edward W. Hatch. II Buffalo 1909 John S. Lambert. Fredonia 1913 

Frank C. Laughlin.* Buffalo 1909 Frederick W. Kruse. Clean 1914 



* Presiding Justice. Appellate Division. t Justice of Appellate Division. 
$ Justice of Appellate Division, Isf, Dep't. Ditto. 2d Dep't. § Ditto. Sd Dep't. 
1 Temporarily appointed associate judge of the Court of Appeals. See p. vii. 



VILLAGES OF NEW YORK 

population by the census of 1900. Small figures 

of villai^esauthorizpcl to appoint a superintendent. 

54 Solvay 3.493 111 So. Glens Falls.. 2.025 

55 Brockport 3.398 112. Chatham 2.018 

56 Depew 3.379 113 Hastin-rs-on- 

57 Waklen 3.147 Hudson 2.002 

58 \Vaterfordi3....3.146 114 Sprinu'ville i;992 

59 Lerov 3.144 115 Sag Harbor 1,969 

60 LHstershire 3.111 116 Cornwall 1.966 

61 Warsaw 3.048 117 Philmont 1.964 

62 Canastota 3.030 118 Whitesboro 1,958 

63 Baldwinsville... 2.992 119 Silver Creek.... 1,944 

64 Watkins 2.943 120 Pahnvra 1.937 

65 Patchosrue 2.926 121 Oxford i;93l 

66 Oswego Falls... 2.925 122 Dresden i;9l5 

67 Carthage 2.895 123 Clavton 1,913 

68 Uobbs Ferrv....2.8!^8 124 Tlcoudero'ga 1,911 

69 Ellenville..'. 2.879 125 Horseheads 1.901 

70 Goshen 2.826 126 RoukviUe Ctr. .. i;884 

71 Walton 2.811 127 St. Johnsville...i;873 

72 Perry 2.763 128 Greenwich i;869 

73 Canton 2,7.57 129 Rosendale 1.840 

74 Coxsackie 2.735 130 Cazenovia 1.819 

75 Granville 2.7(H) 131 Northport 1,794 

76 Frankfort 2.(:64 132 Attica 1,785 

77 Freeport 2.612 133 Klniira Heights. 1.763 

78 Saranac Lake. .2,594 134 Libertv 1.760 

79 East Svracuse.. 2.509 135 Port Henrv 1,751 

80 Civde 2..507 136 lioonville 1,745 

81 Fa'irport 2.489 137 Warwick 1,735 

82 Fort Plain 2.444 i:^ Norwood 1,714 

83 Westfield 2.430 139 Hamburg 1,683 

84 Mount Morris.. .2.410 140 Rouse's Point. ..1,675 

85 Geneseo 2.400 141 Hamilton 1.627 

86 Homer 2.381 142 Su (Tern :.. 1,619 

87 Camden 2.370 143 Clifton Springs. 1,617 

88 Coo perstown.... 2.368 144 Avon 1,601 

89 East Aurora.... 2.366 144 Schuvlerville.... 1.601 

90 Greeuport 2.366 144 South Nvack... .1.601 

91 Lowville 2.352 147 Akron 1.585 

92 Sidnev 2,331 148 Cambridse 1,578 

93 Cobleskill 2.327 149 Waterville 1.571 

94 Southampton... 2.289 150 Sea Clitf 1.558 

95 Irvington 2.231 1.51 Xorth Olean... .1.549 

96 Athens 2,171 152 Richfield 

97 Babvlon 2.157 Springs 1,537 

98 Gowanda.... .-..2.143 153 Croton-on-Hud- 

99 Keeseville 2,110 son 1.533 

100 Canajohane ....2.101 154 Phcenix 1.532 

101 Addison 2.080 155 Weedsport 1,525 

102 W. Haverstraw. 2.079 1-56 Alexandria Bav. 1.511 

103 Delhi 2.078 157 Cuba 1.502 

104 Cauisteo 2.077 158 Skaneateles 1.495 

105 Cold Spring..... 2.067 159 Rhinebeck 1.4»4 

106 Deposit 2,051 160 Pulaski 1.493 

107 Corinth 2,039 161 Moravia 1.442 

108 Amitvville 2.038 162 Middleport 1.431 

109 Massena 2.032 163 Charlotte 1.400 

110 Mohawk 2,028 164 Salem 1,391 

* Across the river from 15. t Just east of 2. Lansingburgh is now part 
of the city of Troy, but its school svstem 's undisturbed. 



Arranged in order of 


show location on the map 


1 Glens Fa.lls9 ... 


.12.613 


2 Lansingburgi-i 


.12,595 


3 Saratoga 




Springsio .. . 


12.409 


4 Peekskilli7 


. 10.358 


5 Port Jervis2 3.. 


, 9.385 


6 Batavias 


9.180 


7 Plattsburgs .... 


8.434 


8 Sing Singis .... 


, 7,939 


9 White Plains 2 1 


. 7.899 


10 Port Chester2 2. 


. 7,440 


11 Tonawandai .. 


. 7.421 


12 Oneonta2 4 


. 7.147 


13 Seneca FallsS ., 


. 6.519 


14 Canandaigua* 


. 6.151 


15 Haverstrawis.. 


. 5,935 


15 Malone7 


5.935 


17 Mntteawan 


. 5.807 


18 Norwich2 5.... 


. 5.766 


19 Hoosick Falls 11 


5.671 


20 Herkimer 15 ..., 


. 5.555 


21 CatskilUe 


. 5,484 


22 Fulton 


. 5 281 


23 Ilion* 


. 5 138 


24 Owego2 7 


. 5.039 


25 Bath 


. 4.994 


26 Mamaroneck.. 


4 7'^2 


27 Green island.. 


. 4.770 


28 Tarrytown .... 


. 4.770 


29 Medinat 


. 4,716 


30 Mechanics- 




villei2 


. 4,695 


31 Penn\an5 .... 


. 4,650 


32 Newark..^... . 


. 4,578 


33 Albion2 ....... 


. 4,477 


34 Sand V Hill 


. 4.473 


35 Waverlv 


. 4.465 



36 Whitehall 


4.377 




4.300 


38 Nvack2 


4.275 


38 Waterloo 


4.275 


40 Salamanca 


4,251 


41 No. Tarrytown. 


4.241 


42 Fredonia 


4,127 


43 BallstonSpa.... 


3,923 


44 Potsdam 


3 843 


45 Lancaster 


3.7.50 


46 Saugerties 


3.697 


47 Fishkill Land- 




ing 


3.673 


48 Gouverneur 


3.689 


49 Dansville 


, 3.633 


50 Hempstead 


3.582 


51 Wellsville 


, 3.5.56 


52 Fort Edward... 


3.521 


53 Wappingers 




Falls 


3,504 



THE CITIES OF NEW YORK. Seepages 96-117. 

Date of Pop'nin Pop'nin Pop'nin Pop'nin Pov'n in '^ 

Incorpor^n 1860 1870 1880 1890 ^1900 % 

First Class ft^ 

1. New York .. .^^.. 1.072.319*. 1.338,391*. .l,790,091t. .2.352,150t. .3,437,202. . 1 
_^ Manhattan.. 1680. 805,658.. 942,292.. 1,206,299.. 1,515,301.. i;850.093.. 
|> I Bronx I '>00 507 

I \ Brooklyn .... 1834. 266,661 . . 396,099. . 566,663. . 806,343 ' " 1 166'582" ' 

^ ST"' i -^^'^ I^'IQO-- 30,506.: '152:999;: 

^ i. Richmond 67 021 

13 Buffalo 1832.. 81.129.. 117,714.." ■l55,134V." 255,664'. . 352 387' 2 

Second Class ■< ■■ 

7. Rochester 1834 . . 48,204 . 62,386 . ^ 89,366 . . 133,896 162 608 3 

21. Syracuse 1847.. 28,119.. 43,051.. 51,792.. 88,143 108 374" 4 

34. Albany 1686.. 62,367.. 69,422.. 90,758. 94 923 94^151 5 

35. Troyi 1816.. 39,2:35.. 46,465.. 56,747.. 60,956. 73'246 6 

Third Class. 

26. Utica 1832.. 22,529 . 28.804.. 33,914.. 44,007 56 383 7 

4. Yonkers 1872.. 11,848.. 18.357.. 18,892.. 32,833.. 47,931 8 

6. Binghamton 1867.. 8,325.. 12.692.. 17.317.. 32,033.. 39 647 9 

7. Elmira .1864.. 8,682.. 15,863.. 20,541.. 30,893.. 35 672 10 

31. Schenectady 1798 11,026.. 13.655.. 19,902.. 31,682 11 

20. Auburn 1&48.. 10,986.. 17,225.. 21.924.. 25,858.. 30,345. .12 

40. Newbur^h 1865 17,014.. 18,049.. 23,087.. 24,943. .13 

38. Kingrston 1872 18.344.. 21,261.. 24,535.. 14 

39. Pougrhkeepsie....ia54.. 14,726.. 20,080.. 20,207.. 22,206.. 24.029.. 15 

32. Cohoes 1869.. 8,800.. 15,357.. 19,416.. 22.509.. 23,910.16 

11. Jamestown....... 1886 5.336.. 9,357.. 16,038.. 22,982. .17 

22. Oswegro 1848.. 16,816.. 20,910.. 21,116. 21.842.. 22,199.. 18 

23. Watertown.......l869.. 7,567.. 9,336.. 10.697.. 14,725.. 21.696. .19 

30. Amsterdam 1885 5,426.. 9,466.. 17,336.. **21,901..20 

2. Mt. Vernon.... ...1892 10,830.. 20,346. .21 

5. Niagara Falls .... 1892 19.4f7..22 

28. Gloversville 1890 4,518.. 7,133.. 13,864.. 18,349. .23 

16. Lockport 1865 12,426.. 13,522.. 16,038.. 16,581.. 24 

25. Rome 1870.. 9,289.. 11,000.. 12,194.. 14,991.. 15,343.. 25 

3. New Rochelle....l899..' 9,057.. 14,720. .26' 

5. Middletown 1888 6,049.. 8,494.. 11,977.. 14,522. .27 

33. Watervliet.......l897 12.967.. 14,321. .28 

19. Ithaca 1888 8,462.. 9,105.. 11,079 . 13,136.. 29 

24. Offdensburg: 1868.. 7,409.. 10.076.. 10,341.. 11,662.. 12,638.. 30 

9. Hornellsville . . . .1888 4,552.. 8,195.. 10.996.. 11,918. .31 



4,518.. 
12,426.. 
11,000.. 


7,133.. 
13,522.. 
12,194.. 


6,049:: 


8,494.. 


8,462.. 
10.076.. 
4,552.. 

4:018.: 


9,105.. 
10,341.. 
8,195.. 
7,248.. 
4,802.. 


8,615.. 


8,676:: 



12. Dunkirk 1880 7,248.. 9,416.. 11,616. .32 

8. Corning 1890 4,018.. 4,802.. 8,550.. 11,061. .33 

86. Rensselaer 1897 7,301.. tno,870..34 

18. Geneva 1897 7,557.. 10.433. .35 

27. Little Falls 1895 8,783.. 10,381. .36 

29. Johnstown 1895.. 7,768.. 10,130.37 

37. Hudson 1785 8,615.. 8,670.. 9,970.. 9.528. .38 

10. Olean 1894 7,358.. 9,462. .39 

14. No. Tonawanda..l897 4,793.. 9,069. .40 

41. Cortland 1900 8,590.. 9,014. .41 

Oneida 1901 6,083.. 7.738. .42 

* Including: Brooklyn, t Including Brooklyn and Long Island City. X In- 
cluding Lansingburg, 12,595, annexed 1901. ** Including most of Rockton, 
1,052 less 80, annexed 1901. +t Including Bath-on-Hudson, 2,504, and part of 
East Greenbush, 800, annexed 1901. 



NUMBER OF TOWNS AND CITIES, BY COUNTIES. 

[The Counties are numbered according to the map inside first cover.] 



TOWNS. CITIE 

37. Albany 9 3 

21. Allegany 29 

16. Broome 15 1 

22. Cattaraugus 32 1 

47. Cayuga 23 1 

23. Chautauqua 25 3 

19. Chemung 11 1 

33. Chenango 21 

59. Clinton 14 

14. Columbia 18. 

32. Cortland 15.. 

16. Delaware 19.. 

11. Dutchess 20.. 

24. Erie 25 

58. Essex 18.. 

60. Franklin 17. . 

43. Fulton 10 . 

48. Genesee 13.. 

15. Greene 14 . 

56. Hamilton 8. . 

43. Herkimer ... 19. . 

55. Jefferson 22.. 

5. Kings* 4*. 

54. Lewis. 18. 

26. Livingston 17 

45. Madison 14 1 

51. Monroe ..19 1 

42. Montgomery 10 1 

2. Nassau 3 

6. New York 1 

49. Niagara 12 -. 3 



TOWNS. CITIES 



..1 
...1 

.(1*) 



..(1*) 

...2 
■•(1*) 



44. Oneida 26. 

46. Onondaga 19 

27. Ontario 16. 

9. Orange 18 

50. Orleans 10. 

53. Oswego 21 

34. Otsego 24 . 

10. Putnam 6 

3. Queens 

38. Rensselaer 16 

5. Richmond* 

8. Rockland 5 

61. St. Lawrence 31... 1 

40. Saratoga 20 

.36. Schenectady 5 1 

35. Schoharie 16 

30. Schuyler 8 

29. Seneca 10 

20. Steuben 32 2 

1. Suffolk 10.. 

13. Sullivan 15 

18. Tioga 9 

31. Tompkins 9 1 

12. Ulster 20 1 

57. Warren 11 

39. Washington 17 

52. Wayne 15 

7. Westchester 21 3 

25. Wyoming 16.-. ... 

28. Yates • 9 

929 42 



* Now part of New York City. 



(575) 



DEPARTMENT OF PUBLIC INSTRUCTION. 

Superintendent, Charles R. Skinner, Albany $5,000 

Deputy, Danf orth E. Ainsworth. Albany 4,500 

Second Deputy, Arthur M. Wright, Albany 4,000 

Heads of Sub- Departments. 
Law, Edwin M. Holbrook Institute. Isaac H. Stout. $4,000 

Examination, Thomas E. Finegan. TVm^'g'c^a^s. Frank H. Wood. $3,500 

$3,000 Library, L. O. Wi?well. $^.400 

Finance, DeLancey M. Ellis, $-^,400 Compulsoi'y attendance, James D. 

Statistics, Hiram C. Case, $2,100 Sullivan, $3,000 

Institute Conductors, each S3.000, 
Henry R. Sanford, Ph.D., Penn Yan Charles A. Shaver, Watertown 
Sherman Williams, Ph.D.. Glens Falls Irving B. Smith. A.M.. Warsaw 
Philip M. Hull, A.M.. Clinton 
Special Instructor in Drawing. In Nature Study (paid by Cornell Un.) 
Miss Gratia L. Rice, Buffalo, $2,200 Mrs. Mary Rogers Miller, Ithaca, $1,600 
In English, Sara A. Collier, Oneonta, $1,200. 

In Fi'imary Work, Mae E. Schrieber, $2,000. 

Lecturer, Charles E. Fitch, Rochester, $2,500 
Training School and Class Inspectors, each $2,500. 
S. Whitford Maxson. Adams Centre Willis D. Graves, Ithaca 
John C. Bliss, Gouverneur Albert C. Hill, Albany 

Compulsory Attendance Inspectors, each $2,500 

A. Edson Hall, Saratoga Springs John J. N. Symes, New York 

Wm. J. Barr, Batavia 

Inspector of Normal Schools, Charles T. Andrews, Seneca Falls. 

PRINCIPALS OF THE STATE NORMAL SCHOOLS. 

As numbered on the Map on opposite page 

7. Albany Normal College William J. Milne. . . .$4,000 

2. Brockport C. F. McFarlane. . . . 3,000t 

1. Buffalo James M. Cassety... 3,000t 

11. Cortland Francis J. Cheney. .. 3.300 

12. Fredonia F. B. Palmer 3,000t 

3. Geneseo John M. Milne 3.300 

9. Jamaica A. C. McLachlan . . . . 3,30ii 

8. New Paltz Myron E. Scudder. . . 3.300 

10. Oneonta Percy I. Bugbee 3.300 

4. Oswego Isaac B. Poucher... 3,300 

. 6. Plattsburgh Geo. W. Hawkins. . . 3,300 

5. Potsdam Thos. B. Stowell ... 3,000t 



t Besides residence furnished by the State. 



REGENTS OF THE UNIVERSITY. 

The Governor, ex-o-fficio. The Secretary of State, ex-offido. 

The Lieutenant-Governor, ex-officio. The Sup't of Pub. Instruction, ex-offico. 

1873. Martin I. Townsend Troy 1890. Pliny T. Sexton Palmyra 

1874. Anson J. Upson Glens Falls 1890. T. Guilford Smith Buffalo 

1877. Chauncey M. Depew..New York 1892. Wm. Croswell Doane... Albany 
1877 Charles E. Fitch Rochester 1893. Lewis A. Stimson. . . .New York 

1878. WhitelawReid New York 1895. Albert Vander Veer Albany 

1881. Wm. H. Watson Utica 1897. Chester S. Lord New York 

1881. Henry E. Turner Lowville 1900. Thomas Hendrick. .. Kochester 

1883. St. Clair McKelway. . .Brooklyn 1901. Robert C. Pruyn Albany 

1885. Daniel Beach Watkins 1902. 

1888. Carroll E. Smith Syracuse 

OFFICERS OF THE BOARD OF REGENTS. 

Chancellor, Anson J. Upson. Glens Kails None 

Vice- Chancellor, Wm. Croswell Doane, Albany None 

Secretary, James Russell Parsons, Jr $5,750 

D'irector''s Assistant, Henry L. Taylor ],8C0 

Director of State Library, Melvil Dewey, Albany 5.750 

Senior Librarian. Walter S. Briscoe 2.400 

Education Lib)'a7'ian, May Seymour 2,100 

Library Inspector. Wm. R. Ea.'^tiiiSin 2,400 

Director of State Musewn and Geologist, F. J. H. Merrill 3 000 

Palaentologist. John M. Clarke 3,000 

Botanist, Charles H. Peck 2,400 

Entomologist, Ephraim P. Felt 1,8' 

Examiner in Drawing, Ella L. Ricliardson ] .200 

Head Inspector, Charles F. Wheelock 3,600 

Inspectors, Charles N. Cobb. $2,720 ; Arthur G. Clement. $2,720 
Charles Davidson. $2,640; E. W. Lyttle, $2,400; S. Dwight 
Arms, $2,400 ; Ezra J. Peck. $2,400 ; L O. (Jrissy. $1,920. 
Apparatus Inspectors. James H. Gibson, F. M. Baker $1,260 



^ COLLEGES 

' {See Map on opposite page.) 

18. Adelphi College. Brooklyn, 1896. 18. Polytechnic Institute of Brook- 

21. Alfred Univ., Alfred Centre. 1857. lyn. 1869. 

17 BarnardCollege, New York, 1889. 13. Rensselaer Polytechnic Institute, 

1. Canisius College. Buffalo, 1883. Troy, 1824. 

10. Clarkson School of Technicol- 22. St. Bonaventure's College, Alle- 

ogy. Potsdam. gany, 1875. 

19 Colgate Univ., Hamilton. 1846. 18. St. Francis's CI.. Brooklyn, 1884. 
17 College of St. Francis Xavier, 18. St. John's CI., Brooklyn, 1871. 

New York 1861. 17. St. John's Cl., Fordham. 1846. 

17 College of the City of N. Y . 1854. 9. St. Lawrence Univ., Canton, 1856. 

17. Columbia Univ., New York. 1754. 15. St. Stephen's College, Anandale, 

6. Cornell University, Ithaca, 1865. 1860. ^ 

20 Elmira College. Elmira,1855. 8 Syracuse Univ., Syracuse, 1870. 
12 Hamilton College, Clinton, 1812. 17. Teachers' Cl.. New York, 1887. 

5 Hobart CoUege.^Geneva, 1825. 11. Union Cl., Schenectady, 1795. 

17. Manhattan College. N. Y., 1863. 17. New York University, 1831 

2 Niagara Univ., Niagara Falls. 3. Univ. of Rochester, Rochester. 

1883 1851. 
17. Normal College of the City of 16. Vassar Cl., Poughkeepsie, 1861. 

N:ew York 1888. 7. Wells College. Aurora, 1886. 
(579) 



580 



NEW YORK STATE SENATORS 



SENATE. — Elected by the people. See page 229, 
Term expires Dec. 31, 1902. 

President Timothy L. Woodruff, 

President pro tern T. E. Ellsworth. 



Dist. 

1. William M McKinney, 

2. William Willets Cocks, 

3. Thomas H. Cullen,* f 

4. Arthur H. Audett, 

5. James H McCabe,f 

6. Rudolph C. Fuller, 

7. Patrick H. McCarren,* f 

8. Henry Marshall,* 

9. William Schnitzspan, 

10. John F. Ahearn,* f 

11. Timothy D. Sullivan,* f 

12. Samuel J. Foley,* \ 

13. Bernard F. Martin,* f 

14. Thomas F. Grady,* \ 

15. Nathaniel A. Elsberg,* 

16. Patrick E. Trainor,f 

17. George W. Plunkitt,* f 

18. Victor J. Dowling.t 

19. Samuel S. Slater, 

20. Thomas F. Donnelly,* f 

21. Joseph P. Hennessy.f 

22. Isaac M. Mills, 

23. L. F. Goodsell,* 

24. H. S. Ambler,* 

25. W. S. C. Wiley, 



Bist. 

26. Wm. L. Thornton,* 

27. Hobart Krum,* 

28. Edgar T. Brackett,* 

29. James B McEwan, 

30. William D. Barnes, 

31. Spencer G. Prime, 
32 George R. Malby,* 

33. Jas. D. Feeter,* 

34. G. A. Willard, 

35. Elon R. BrowD,* 

36. Horace White,* 

37. N. N. Stranahan,* 

38. George E. Green, 

39. Benjamin M. Wilcox,* 

40. Edwin C Stewart, 

41. F. D. Sherwood.* 

42. John Raines.* 

43. Morton E. Lewis, 

44. W. W. Armstrong.* 

45. T. E. Ellsworth,* 

46. L. H. Humphrey,* 

47. Henry W. Hill, 

48. Samuel J. Ramsperger,* f- 

49. George A. Davis,* 

50. Frank W. Higgins.* 



* Re-elected. t Democrats. All others republicans. 

Apportioxmext of Assembly by Counties, 1894 

Broome, Cattaraugus, Cayuga, Chautauqua, Dutchess, Jeffer- 
son, Niagara, Orange, Oswego, St. Lawrence, Steuben, Suffolk,, 
ana Ulster counties have each 2 districts; Oneida, Queens, Reuse- 
laer, and Westchester have 3; Albany, Monroe, and Onondaga 
have 4; Erie has 8; Kings has 21; New York has 35. All the- 
other counties form one district each, except Fulton and Herkim-^ 
er, which form one jointly. See page 227. 

Speaker of Assembly of 1902. ..S. Frederick Nixon, Chautauqua. 



XEW YORK REPRESENTATIVES IN THE 57TH 
CONGRESS. 

Term begins March 4, 1901 ; ends March 3, 1903. 





(For Districts, see map on opposite page.) 


Dist. 


Dut. 


1. 


F. Storm 


18^ John Henry Ketcham,f X 


2. 


John J. Fitzgerald, f 


19. W. H. Draper, 


5. 


Henry Bristow, 


20 G. N. South wick, 


4. 


H. A Hanbury, 


21. JohnK. Stewart,! 


5. 


Frank F. Wilson, f 


32. Lucius N. Littauer, f X 


6. 


G. Lindsay, 


23. Louis W. Emerson, f 


7. 




24. Chas. L. Knapp, 


8. 


T. J. Creamer, 


25. James S. Sherman,^f :{: 


9. 


H. M Goldfogle,f 


26. George W. Ray,* f X 


10. 


Amos J. Cummings,* f % 


27. Michael E. Driscoll, f 


11. 


William Sulzer,* ft 


28. SerenoE. Payne,* ft 


12. 


Geo. B. McClellan,*ft 


29. Charles W. Gillet,*ft 


13. 


0. H. P Belmont, 


30. James W. Wadsworth,*f X 


14. 


W. H Douglas, 


31. J. B Perkins, 


15. 


Jacob Ruppert, jr.,f 


32 J. W. Ryan, 


16. 


C A. Pugsley, 


33. Col. D. S. Alexander, \X 


17. 


A. S. Tompkins, f 


34. E. B. Vreeland.f 




* Served in 54tb Congress. 


X Served in 55th Congress. 




t Served in 56th Congress. 



NEW YORK SENATORS IN THE 57TH CONGRESS. 

(See list on page 461.) 

Thomas C. Piatt. Chauncey M. Depew. 

President pro tern, of the Senate, William C. Frye, of Maine 

(583) 



NOTE 

The Xew York members of the present (5Tth) congress are 
elected by tlie congressional districts as laid out in 1892 (page 
582). Those in the 58th congress will be elected by the districts 

on the ())i]V)site page. 



(584) 



UNITED STATES SUPREME COURT 587 

CHIEF JUSTICES OF THE SUPREME COURT. 

1. John Jay, of New York 1789-1795. 

2. John Rutledge, of South Carolina 1795. 

3. Oliver Ellsworth, of Connecticut 1796-1800. 

4. John Marshall, of Virginia 1800-1835. 

5. Roger B. Taney, of Maryland 1836-1864. 

6. Salmon P. Chase, of Ohio 1864-1 873. 

7. Morrison R. Waite, of Ohio 1874-1888. 

8. Melville W. Fuller, of Illinois 1888- 

UNITED STATES SUPREME COURT. (See pp. .) 

CHIEF JUSTICE. 

Melville W. Fuller appointed 1888. 

ASSOCIft.TE JUSTICES. 

John M. Harlan appointed 1877. 

Horace Gray " 1881. 

David J. Brewer " 1889. 

Henry B. Brown " 1890. 

George Shiras, jr " 1892. 

Edward Douglas White " 1894. 

Rufus W. Peckham '' 1895. 

Joseph McKenna " 1897. 

UNITED STATES COURTS. (See pages 278-281.) 
New York is in the 2d Circuit, comprising also Connecticut and 
Vermont. The New York judges of the circuit court are Wil- 
liam .1. Wallace, E. Henry Lacombe; of the district courts, John 
R. Hazel, Buffalo; Alfred C. Coxe, Utica; Geo. Bethnus Adams, 
New York; and Edward B. Thomas, Brooklyn. , Her United 
States district attorneys are Charles H. Brown, Buffalo; Geo. B. 
Curtiss, Binghamton; Henry L. Burnett, New York; George H. 
Pettit, Brooklvn. 



PRESIDENTIAL VOTE, FEOM 1789 TO DATE. 



m 



CANDIDATES. 



1805 
1809 



1817 



1821 
1825 



1789 George Washington 

1797 John Adams 

|Thomas Jefferson 

1801 Thomas Jefferson 

Aaron Burr 

John Adams 

, Thomas Jefferson 

C. C. Pinekney 

James Madison 

JC.C. Pinekney 

1813 James Madison 

De Witt Clinton 

James Monroe 

Ruf us King 

James Monroe 

J. Q. Adams 

Andrew Jackson 

W. H. Crawford 

Henry Clay 

Andrew Jackson 

J. Q. Adams 

Andrew Jackson 

Henry Clay 

John Floyd 

William West 

Martin Ya-ii Buren 

William H. Hai-rison 

William H. Harrison 

Martin Van Buren 

James K. Polk 

Henry Clay 

Zachary Taylor 

Lewis Cass 

Martin Van Buren 

Franklin Pierce 

Winfield Scott and others 

James Buchanan 

John C. Fremont and others.. 

Abraham Lincoln 

J. C. Breckenridge and others. 

Abraham Lincoln 

Geo. B. McClellan 

Ulysses S. Grant 

Horatio Seymour 

Ulysses S. Grant 

Horace Greeley 



1837 
1841 



1845 
1849 



1853 
1857 



1861 
1865 



1873 



Fed... 
Dem. . 
Dem. . 
Dem. . 
Fed... 
Dem. . 
Fed. . 
Dem. . 
Fed. . . 
Dem. . 
Fed... 
Dem. . 
Fed... 
Dem. . 
Fed... 
Dem. . 
Dem. . 
Whig . 
Dem. . 
Fed... 
Dem. . 
Whig . 
Whig. 
Whig . 
Dem. . 
Whig . 
Whig . 
Dem. . 
Dem. . 
Whig . 
Whig. 
Dem. . 
Dem. . 
Dem. . 
Whig . 
Dem. . 
Rep. .. 
Rep. . . 
Dem. . 
Rep. . . 
Dem. . 
Rep. . . 
Dem. . 
Rep. . . 
L.&D. 



Popular Vote. 



Elec- 
tors. 



Elec. chosen by Legislature. jUuaa 



Election went to H. of R. 

and Jefferson was elected 

on the 86th ballot. 
Elec. chosen by Legislature 



But 1 electoral vote in op. . . 

105.321. Elec. by H. of R, 

155.8?2 

44.282 

46.587 

647.2:31 

509.097 

687.502 

5:30.189 

Not known 



761. S49. . 

730,656. . 
1.275.011. . 
1.135,761.. 
1.337.243. . 
1,361.362. . 
1.360.099.. 
1.220.544.. 

291.263. . 
1.601.474. . 
l..>42,403... 
1.838.169. . 
2.215,798... 
1.866.352... 
2.810.501. . . 
2,216,067. . . 
1,808,725. . . 
3.015.071. - . 
2,709,613. - . 
:3.507.070. . . 
2,834,079. . 



73 

73 

65 
148 

28 
122 

47 
128 

89 
183 

34 



41 
37 

178 
83 

219 

49 

11 

7 

170 

121 



170 
105 
163 
127 

254 
42 

174 
122 
180 
123 
213 
21 
214 



THE president's CABINET 



589 



5 ^ , CANDIDATES. 

2|! 


1 


PopuLAK Vote. 


Elbo- 

TORS. 


1877 Rutherford B. Hayes 


Rep.... 
Dem. . . 
G'b'k... 
Rep . . . 
Dem.. . 
G'b'k... 
Dem. . . 
Rep .... 
G'b'k. . 
Pro.. .. 
Rep.... 
Dem.. . 
Pro.. .. 

Dem . . . 
Rep.... 
Peop. . . 

Pro 

Rep.... 
Dem . . . 
N. Dem 
Pro.. .. 
Soc.L.. 
Nat.... 
Rep 


4,049,096 


185 


Samuel J. Tilden. 


4,315,801. 


184 


Peter Cooper 


81,907 




1881 James A. Garfield 


4,450,921.... 


214 


Winfleld S. Hancock 


4,447,888 


155* 


J. B. Weaver 


307,740 

5.874,118 




1885 Grover Cleveland 


219 


James G. Blaine 


4,849,850 


182 


Benjamin F. Butler 


184,948 

149,.i26 




John P. St. John 




1889 Benjamin Harrison 


5,439,853 


233 


Grover Cleveland 


5,540,329 


168 


Clinton B. Fisk 


249,506 

151,344... . .. 




Scattering 




1893 Grover Cleveland 


5,556,562 


277 


Benjamin Harrison 


5,162,874 


145 


James B. Weaver 

JohnBidwell 

1897 William McKinley 

William J. Bryan 

John M. Palmer 

Joshua Levering 

(Charles H. Matchett 

1 Charles E. Bentley 

1901 (William McKinley 

William J. Bryan 


1.055,424 

264,066 

7,121,342 

6,502.600 

134,731 

123,428 

35,306 

13,535 


22 

271 
176 




292 


Dem.... 




155 



* Including Georgia's votes, not counted. 

Note.— The one vote in 1821 was cast for John Quincy Adams by ac 
©lector from New Hampshire. 

PRESIDENT Roosevelt's cabinet 
(See pp. 390-427.) 

Secretary of State John Hay, Ohio. 

Secretary of Treasury. ... Leslie M. Shaw, Iowa. 

Secretary of War Elihu Root, New York 

Secretary of Navy John D. Long, Mass, 

Secretary of Interior Ethan Allen Hitchcock, Mo. 

Postmaster General Henry C. Payne, Wis. 

Attorney General Philander C. Knox, Pa. 

Secretary of Agriculture . James Wilson, Iowa. 



d 



DECLARATION OF INDEPENDENCE 
In Congress, July 4, 1776 



THE unaxi:mous declaration of the thirteen united states 

OF AMERICA 

When, in the course of human events, it becomes necessary for 
one people to dissolve the political bands ^vhich have connected 
them with another, and to assume, among the powers of the earth, 
the separate and equal station to which the laws of nature and of 
nature's God entitle them, a decent respect to the opinions of 
mankind requires that they should declare the causes which 
impel them to the separation. 

We hold these truths to be self-evident, that all men are created 
equal, that they are endowed by their Creator with certain 
inialienable rights, that among these are life, liberty and the pur- 
suit of happiness. That to secure these rights, governments are 
instituted among men, deriving their just powers from the con- 
sent of the governed; that whenever any form of government 
becomes destructive of these ends, it is the right of the people to 
alter or to abolish it, and to institute new government; laying its 
foundation on such principles, and organizing its powers in such 
form as to them shall seem most likely to effect their safety and 
happiness. Prudence, indeed, will dictate, that governments 
long established should not be changed for light and transient 
causes; and accordingly all experience hath shown that mankind 
are more disposed to suffer, while evils are sufferable, than to 
right themselves by abolishing the forms to which they are 
accustomed. But when a long train of abuses and usurpations, 
pursuing invariably the same object, evinces a design to reduce 
them under absolute depotism, it is their light, it is their duty, to 
throw off such government, and to provide new guards for their 
future security. Such has been the patient sufferance of these 

(591) 



592 DECLAEATION OF INDEPENDENCE 

colonies, and such is now the necessity which constrains them to 
alter their former systems of government. The history of the 
present king of Great Britain is a history of repeated injuries and 
usurpations, all having in direct object the establishment of an 
absolute tyranny over these states. To prove this, let facts be 
submitted to a candid world. 

He has refused his assent to laws, the most wholesome and 
necessary for the public good. 

He has forbidden his governors to pass laws of immediate and 
pressing importance, unless suspended in their operation till his 
assent should be obtained; and when so suspended he has utterly 
neglected to attend to them. 

He has refused to pass other laws for the accommodation of 
large districts of people, unless those people would relinquish 
the right of representation in the legislature, a right inestimable 
to them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, 
imcomfortable, and distant from the depository of their public 
records, for the sole purpose of fatiguing them into compliance 
vdth his measures. 

He has dissolved representative houses repeatedly, for oppos- 
ing with manly firmness his invasions on the rights of the people. 

He has refused for a long time, after such dissolutions, to cause 
others to be elected; whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exer- 
cise ; the state remaining, in the meantime, exposed to all the 
dangers of invasion from without, and convulsions within. 

He has endeavored to prevent the population of these states; 
for that purpose obstructing the laws for naturalization of for- 
eigners; refusing to pass others to encourage their migration 
hither, and raising the conditions of new appropriations of lands. 

He has obstructed the administration of justice by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure 
of their offices; and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither 
swarms of officers to harass om- people, and eat out their sub- 
stance. 



DECLARATION OF INDEPENDENCE 593 

He has kept among us, in times of peace, standing armies, 
without the consent of our legislatures. 

He has affected to render the military independent of and su- 
perior to the civil power. 

He has combined with others to subject us to a jurisdiction 
foreign to our constitution, and unacknowledged by our laws; 
giving his assent to their acts of pretended legislation: 

For quartering large bodies of armed troops among us: 

For protecting them, by a mock trial, from punishment for any 
murders which they should commit on the inhabitants of these 
states: 

For cutting off our trade with all parts of the world: 

For imposing taxes on us without our consent: 

For depriving us, in many cases, of the benefits of trial by jury: 

For transporting us beyond seas to be tried for pretended of- 
fences: 

For abolishing the free system of English laws in a neighbor- 
ing province, establishing therein an arbitrary government, and 
enlarging its boundaries, so as to render it at once an example and 
fit instrument for introducing the same absolute rule into these 
colonies: 

For taking away our charters, abolishing our most valuable 
laws, and altering fundamentally the forms of our governments: 

For suspending our own legislatures, and declaring themselves 
invested with power to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his 
protection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our 
towns, and destroyed the lives of our people. 

He is, at this time, transporting large armies of foreign mer- 
cenaries to complete the works of death, desolation and tyranny, 
already begun, with circumstances of cruelty and perfidy, 
scarcely parallelled in the most barbarous ages, and totally un- 
worthy the head of a civilized nation. 

He has constrained our fellow citizens, taken captive on the 
high seas, to bear arms against their country, to become the exe- 
cutioners of their friends and brethren, or to fall themselves by 
their hands. 



694: DECLARATION OF INDEPENDENCE 

He has excited domestic insurrections amongst us, and lias 
endeavored to bring on the inhabitants of our frontiers the merci- 
less Indian savages, whose known rule of warfare is an undistin- 
guished destruction of all ages, sexes and conditions. 

In every stage of these oppressions we have petitioned for 
redress in the most humble terms; our repeated petitions have 
been answered only by repeated injury. A prince whose charac- 
ter is thus marked by every act which may define a t}Tant, is 
imfit to be the ruler of a free people. 

Nor have we been wanting in attention to our British brethren. 
We have warned them from time to time of attempts by their 
legislature to extend an unwarrantable jurisdiction over us. TTe 
have reminded them of the circumstances of our emigration and 
settlement here. AYe have appealed to their native justice and 
magnanimity, and we have conjured them by the ties of our com- 
mon kindred to disavow these usurpations, which would inevit- 
ably inten-upt our connections and correspondence. They too 
have been deaf to the voice of justice and consanguinity. AVe 
must, therefore, acquiesce in the necessity which denounces oui- 
separation, and hold them, as we hold the rest of mankind, 
enemies in war, in peace friends. 

We, therefore, the representatives of the United States of 
America, in general congress assembled, appealing to the Supreme 
Judge of the world for the rectitude of our intentions, do, in the 
name, and by authority of the good people of these colonies, 
solemnly publish and declare, that these United Colonies are, and 
of right ought to he, free and independent states; that the}* are 
absolved from all allegiance to the British crown, and that all 
political connection between them and the state of Great Britain 
is, and ought to be, totally dissolved; and tlmtasfreeandindejx'n- 
dent states, they have full power to leA'y war. conclude peace, 
contract aliances, establish commerce, and to do all other acts and 
things which independen t states may of right do. And for the sup- 
port of this declaration, with a firm reliance on the protection of 
Divine Providence, M'e mutually pledge to each other our lives, 
our fortunes, and our sacred honor. 

JoHX Ha:xcoctv. and 54 other siirners. 



ARTICLES OF CONFEDERATION AND PERPETUAL 
UNION BETWEEN THE STATES (1776-78) 

Article I. — The style of this confederacy shall be, "The 
United States of America" (1).* 

Art. II. — Each state retains its sovereignty, freedom, and in- 
dependence, and every power, jurisdiction, and right, which is 
not by this confederation expressly delegated to the United States 
in congress assembled (93). 

Aut. III. — The said states hereby severally enter into a firm 
league of friendship with each other, for their common defence, 
the security of their liberties, and their mutual and general wel- 
fare, binding themselves to assist each other against all force of- 
fered to or attacks made upon them, or any of them, on account 
of religion, sovereignty, trade, or any other pretence wdiatever (1). 

Art. IV. — The better to secure and perpetuate mutual friend- 
ship and intercourse among the people of the different states in 
this union, the free inhabitants of each of these states — paupers, 
vagabonds, and fugitives from justice, excepted — shall be en- 
titled to all privileges and immunities of free citizens in the several 
states; and the people of each state shall have free ingress and 
regress to and from uny other state, and shall enjoy therein all the 
privileges of trade and commerce, subject to the same duties, im- 
positions, and restrictions as the inhabitants thereof respectively; 
provided that such restriction shall not extend so far as to pre- 
vent the removal of property, imported into any state, to any 
other state of which the owner is an inhabitant; provided also 
that no imposition, duties, or restriction shall be laid by any state 
on the property of the United States, or either of them (73, 52). 

If any person be guilty of or charged with treason, felony, or 
other high misdemeanor, in any state, shall flee from justice, and 
be foun^ in any of the United States, he shall, upon demand of 

* Figures at the end of the paragraphs refer to corresponding para- 
graphs of the national constitution. 

(595) - 



596 ARTICLES OF CONFEDERATION 

the governor or executive power of the state from which he fled, 
be dehvered up and removed to the state having jurisdiction of 
his offence (74). 

Full faith and credit shall be given in each of these states to 
the records, acts, and judicial proceedings of the courts and 
magistrates of every other state (72). 

Art, V. — For the more convenient management of the general 
interest of the United States, delegates shall be annually ap- 
pointed in such manner as the legislature of each state shall di- 
rect, to meet in congress on the 1st Monday in November in every 
year, with a power reserved to each state to recall its delegates, 
or any of them, at any time within the year, and to send others 
in their stead for the remainder of the year (2, 16). 

No state shall be represented in congress by less than 2 nor by 
more than 7 members; and no person shall be capable of being a 
delegate for more than 3 years in any tenn of 6 years; nor shall 
any person, being a delegate, be capable of holding any office 
under the United States, for w^hich he, or another for his benefit, 
receives any salary, fees, or emolument of any kind (3-20). 

Each state shall maintain its own delegates in a meeting of 
the states, and while they act as members of the committee of 
the states (21). 

In determining questions in the United States in congress as- 
sembled, each state shall have one vote (17). 

Freedom of speech and debate in congress shall not be im- 
peached or questioned in any court, or place out of congress; and 
the members of congress shall be protected in their persons from 
arrests and imprisonments during the time of their going to and 
from, and attendance on, congress, except for treason, felony, or 
breach of the peace (21). 

Art. VI. — No state, without the consent of the United States 
in congress assembled, shall send any embassy to, or receive any 
embassy from, or enter into any conference, agreement, alliance, 
or treaty with, any king, prince, or state; nor shall any person 
holding any office of profit or trust imder the United States, or 
any of them, accept of any present, emolument, office, or title, 
of any kind whatever, from any king, prince, or foreign state; 



ARTICLES OF CONFEDERATION 597 

nor shall the United States in congress assembled, or any of them, 
grant any title of nobility (51, 50, 28). 

No two or more states shall enter into any treaty, confedera- 
tion, or alliance whatever between them, without the consent of 
the United States in congress assembled; specifying accurately 
the purposes for which the same is to be entered into, and how 
long it shall continue (51). 

No state shall lay any imposts or duties which may interfere 
with any stipulations in treaties entered into by the United 
States in congress assembled, with any king, prince, or state, in 
pursuance of any treaties already proposed by congress to the 
courts of France and Spain (52). 

No vessels-of-war shall be kept up in time of peace by any 
state, except such number only as shall be deemed necessary, by 
the United States in congress assembled, for the defence of such 
state or its trade; nor shall any body of forces be kept up by any 
state in time of peace, except such number only as, in the judg- 
ment of the United States in congress assembled, shall be deemed 
requisite to garrison the forts necessary for the defence of such 
state ; but every state shall always keep up a well-regulated and 
disciplined militia, sufficiently armed and accoutered, and shall 
provide and constantly have ready for use in public stores a due 
number of field-pieces and tents, and a proper quantity of arms, 
ammunition, and camp equipage (52, 41). 

No state shall engage in any war without the consent of the 
United States in congress assembled, unless such state be actually 
invaded by enemies, or shall have received certain advice of a 
resolution being formed by some nation of Indians to invade such 
state, and the danger is so imminent as not to admit of a delay till 
the United States in congress assembled can be consulted; nor shall 
any state grant coromissions to any ships or vessels of war, nor let- 
ters of marque or reprisal, except it be after a declaration of war 
by the United States in congress assembled, and then only against 
the kingdom or state, and the subjects thereof, against which war 
has been so declared, and under such regulations as shall be es- 
tablished by the United States in congress assembled, unless such 
state be infested by pirates; in which case vessels-of-war may be 
fitted out for that occasion, and kept so long as the danger shall 



598 ARTICLES OF -CONFEDERATION 

continue, or until the United States in congress assembled shall 
determine otherwise (52, 51). 

Art. VII — When land-forces are raised by any state for the 
common defence, all officers of or imder the rank of colonel shall 
be appointed by the legislature of each state respectively by 
whom such forces shall be raised, or in such manner as such state 
shall direct; and all vacancies shall be filled up by the state 
which first made the appointment (41). 

Art. YIII. — All charges of war, arid all other expenses that 
shall be incuiTed for the common defence or general welfare, 
and allowed Iby the United States in congress assembled, shall be 
defrayed out of a common freasur}^ which shall be supplied by 
the several states in proportion to the value of all lands within 
eacji state, granted to or surveyed for any person, as such land 
and the buildings and improvements thereon shall be estimated, 
according to such mode as the United States in congress assem- 
bled shall from time to time direct and appoint. The taxes for 
paying that proportion shall be laid and levied by the authority 
and direction of the legislatures of the several states within the 
time agreed upon by the United States in congress assembled (26). 

Art. IX. — The United States in congress assembled shall have 
the sole and exclusive right and power of determining on peace 
and war, except in the cases mentioned in the 6th Article; of send- 
ing and receiving ambassadors, entering into treaties and alliances, 
provided that no treaty of commerce shall be made whereby the 
legislative power of the respective states shall be restrained from 
imposing such imposts and duties on foreigners as their own people 
are subjected to, or from prohibiting the exf)ortation or importa- 
tion of any species of goods or commodities whatsoever; of es- 
tablishing rules for deciding in all cases what captures on land or 
water shall be legal, and in what manner prizes taken by land or 
naval forces in the service of the United States shall be divided 
or appropriated; of granting letters of marque and reprisal in 
times of peace, appointing courts for the trial of piracies and 
felonies committed on the high seas, and establishing courts for ' 
receiving and determining finally appeals in all cases of captures, 
provided that no member of congress shall be appointed a judge 
of any of the said courts (36, 64, 62, 36, 35, 22). 



ARTICLES OF CONFEDERATION 599 

The United States in congress assembled shall also be the last 
resort on appeal in all disputes and differences now subsisting 
or that hereafter may arise between two or more states concern- 
ing boundary, jurisdiction, or any other cause whatever; which 
authority shall always be exercised in the manner following: 
Whenever the legislative or executive authority or lawful agent 
of any state, in controversy with another, shall present a petition 
to congress, stating the matter in question, and praying for a hear- 
ing, notice thereof shall be given b}' order of congress to the legis- 
lative or executive authority of the other state in controversy, and 
a day assigned for the appearance of the parties by their lawful 
agents, who shall then be directed to appoint, by joint consent, 
commissioners or judges to constitute a court for hearing and de- 
termining the matter in question: but, if they can not agree, con- 
gress shall name 3 persons out of each of the United States; and 
from the list of such persons each party shall alternately strike 
out one, the petitioners beginning, until the number shall be re- 
duced to 13: and from that number not less than 7 nor more than 
9 names, as congress shall direct, shall in the presence of congress be 
drawn out by lot; and the persons whose names shall be so drawn, 
or any 5 of them, shall be commissioners or judges to hear and 
finally determine;^ the controversy, so always as a major part of 
the judges who shall hear the cause shall agree in the determin- 
ation: and if either party shall neglect to attend at the day 
appointed, v/ithout showing reasons which congress shall judge 
sufficient, or, being present, shall refuse to strike, the congress 
shall proceed to nominate 3 persons out of each state, and the 
secretary of congress shall strike in behalf of such party absent 
or refusing; and the judgment and sentence of the court, to be 
appointed in the manner before prescribed, shall be final and con- 
clusive; and if any of the parties shall refuse to submit to the 
authority of such court, or to appear or defend their claim or 
cause, the court shall nevertheless proceed to pronounce sentence 
or judgment, which shall in like manner be final and decisive, — the 
judgment or sentence and other proceedings being in either case 
transmitted to congress, and lodged among the acts of congress 
for the security of the parties concerned: provided that every 
comrnissioner, before he sits in judgment, shall take an oath, to 



m 



600 ARTICLES OF CONFEDERATION 

be administered by one of the judges of the supreme or superior 
court of the state where the cause shall be tried, ' ' well and truly 
to hear and determine the matter in question, according to the 
best of his judgment, without favor, affection, or hope of 
reward": provided also that no state shall be deprived of terri- 
tory for the benefit of the United States (67). 

All controversies concerning the private right of soil claimed 
under different grants of two or more states, whose jurisdictions 
as they may respect such lands, and the states which passed such 
grants, are adjusted, the said grants or either of them being at 
the same time claimed to have originated antecedent to such set- 
tlement of jurisdiction, shall, on the petition of either party to 
the congress of the United States, be finally idetermined, as near 
as may be, in the same manner as is before prescribed for decid- 
ing disputes respecting territorial jurisdiction between different 
states (67). 

The United States in congress assembled shall also have the 
sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the 
respective states; fixing the standard of weights and measures 
throughout the United States; regulating the trade and managing 
all affairs with the Indians, not members of any of the States, 
provided that the legislative right of any State within its own 
limits be not infringed or violated; establishing and regulating 
post-offices from one state to another throughout all the United 
States, and exacting such postage on the papers passing through 
the same as may be requisite to defray the expenses of the said 
office; appointing all officers of the land-forces in the service of 
the United States, excepting regimental officers; appointing all 
the officers of the naval forces, and commissioning all officers 
whatever in the service of the United States; making rules for 
the government and regulation of the said land and naval forces, 
and directing their operations (30, 28, 32, 37, 62, 39). 

The United States in congress assembled shall have authority 
to appoint a committee, to sit in the recess of congress, to be 
denominated "A committee of the states", and to consist of 1 
delegate from each state ; and to appoint such other committees 
and civil officers as may be necessary for managing the general 



ARTICLES OF CONFEDERATION 601 

affairs of tlie United States under their direction; to appoint one 
of their number to preside, provided that no person be allowed 
to serve in the office of president more than 1 j^ear in any term of 
3 years; to ascertain the necessary sums of money to be raised for 
the service of the United States, and to appropriate and apply the 
same for defraying the public expenses; to borrow money, or 
emit bills on the credit of the United States, transmitting every 
half-year to the respective states an account of the sums of money 
so borrowed or emitted; to build and equip a navy; to agree up- 
on the number of land forces, and to make requisitions from each 
state for its quota, in proportion to the number of white inhabi- 
tants in such state; which requisition shall be binding; and there- 
upon the legislature of each state shall appoint the regimental 
officers, raise the men, and clothe, arm, and equip them in a soldier- 
like manner, at the expense of the United States; and the officers 
and men so clothed, armed, and equipped shall march to the place 
appointed and within the time agreed on by the United States in 
congress assembled: But if the United States in congress assem- 
bled shall, on consideration of circumstances, judge proper that any 
state should not raise men, or should raise a smaller number than 
its quota, and that any other state should raise a greater number of 
men than the quota thereof, such extra number shall be raised, 
officered, clothed, armed, and equipped in the same manner as the 
quota of such state,- unless the legislature of such state shall 
judge that such extra number cannot be safely spared out of the 
same; in which case they shall raise, officer, clothe, arm, and 
equip as many of such extra number as they judge can be safely 
spared; and the officers and men so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed on 
by the United States in congress assembled (53, 64, 26, 27, 38, 37, 
41). 

The United States in congress assembled shall never engage in 
a war; nor grant letters of marque and reprisal in time of peace; 
nor enter into any treaties or alliances; nor coin money, nor regulate 
the value thereof; nor ascertain the sums and expenses necessary 
for the defence and welfare of the United States, or any of them; 
nor emit bills, nor borrow money on the credit of the United 
States; nor appropriate money ; nor agree upon the number of 



602 ARTICLES OF CONFEDERATION 

vessels-of-Tvar to be built or purchased, or the number of land or 
sea forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless 9 states assent to the same: nor shall a ques- 
tion on any other point, except for adjourning from day to day, 
be determined, unless by the votes of a majority of the United 
States in congress assembled (83, 36, 62, 30, 26, 27, 38, 37, 61, 
43, 17). 

The congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United 
States, so that no period of adjournment be for a longer duration 
than the space of 6 months, and shall publish the journal of their 
proceedings monthly, except such parts thereof, relating to 
treaties, alliances, or military operations, as in their judgment re- 
quire secrecy; and the yeas and nays of the delegates of each 
state on any question shall be entered on the journal, when it is 
desired by any delegate; and the delegates of a state, or any of 
them, at his or their request, shall be furnished with a transcript 
of the said journal, except such parts as are above excepted, to 
lay before the legislatures of the several states (20, 19). 

Art. X. — The committee of the states, or any 9 of them, shall 
be authorized to execute, in the recess of congress, such of the 
powers of congress as the United States in congress assembled, by 
the consent of 9 states, shall from time to time think expedient 
to vest them with; provided that no power be delegated to the 
said committee, for the exercise of which, by the articles of con- 
federation, the voice of 9 states in the congress of the United 
States assembled is requisite (53-64, 83). 

Art. XL — Canada, acceding to this confederation, and join- 
ing in the measures of the United States, shall be admitted into, 
and entitled to all the advantages of, this union: but no other 
colony shall be admitted into the same, unless such admission be 
agreed to by 9 states (76). 

Art. XII. — All bills of credit emitted, moneys borrowed, and 
debts contracted, by or under the authority of congress before 
the assembling of the United States, in pursuance of the present 
confederation, shall be deemed and considered as a charge against 
the United States, for payment and satisfaction whereof the said 



ARTICLES OF CONFEDERATION 603 

United States and the public faith are hereby solemnly pledged 
(80). 

Art. XIII. — Every state shall abide by the determinations of 
the United States in congress assembled, on all questions which, 
by this confederation, are submitted to them. And the articles 
of this confederation shall be inviolably observed by every state, 
and the union shall be perpetual; nor shall any alteration at any 
time hereafter be made in any of them; unless such alteration be 
agreed to in a congress of the United States, and be afterwards 
confirmed by the legislatures of every state (79). 

Aful ichereas it hath pleased the great Governor of the world 
to incline the hearts of the legislatures we respectively represent 
in congress to approve of, and to authorize us to ratify, the said 
articles of confederation and perpetual union, KXOW YE, that 
we, the undersigned delegates, by virtue of the power and author- 
ity to us given for that purpose, do by these presents, in the 
name and in behalf of our respective constituents, fully and. 
entirely ratify and confirm each and every of the said articles of 
confederation and perpetual union, and all and singular the mat- 
ters and things therein contained: And we do further solemnly 
plight and engage the faith of our respective constituents, that 
they shall abide by the determinations of the United States in 
congress assembled oja all questions which b}-- the said confeder- 
ation are submitted to them; and that the articles thereof shall be 
inviolably observed by the states we respectively represent, and 
that the union shall be perpetual. In witness whereof, we, have 
hereunto set our hands in congress. Done at Philadelphia, in the 
state of Pennsylvania, the 9th day of July, in the year of our 
Lord 1778, and in the 3d year of the Independence of America 
(83). 



OEDINANCE OF 1787 

BE IT ORDAINED by the United States in congress assembled 
(77),* That the said territory, foi- the purposes of temporary gov- 
ernment, be one district; subject, however, to be divided into two 
districts, as future circumstances may in the opinion of congress, 
make it expedient. 

Be it ordained by the authority aforesaid. That the estates, 
both of resident and non-resident proprietors in the said territory, 
dying intestate, shall descend to, and be distributed among their 
children, and the descendants of a deceased child in equal parts; 
the descendants of a deceased child or grandchild, to take the 
share of their deceased parent in equal parts among them: And 
where there shall be no children or descendants, then in equal 
parts to the next of kin, in equal degree; and among collaterals, 
the children ^f a deceased brother or sister of the intestate, shall 
have in equal parts among them, their deceased parents' share;' 
and there shall in no case be a distinction between kindred of the 
whole and half blood; saving in all cases to the widow of the 
intestate, her third part of the real estate for life, and one-third 
part of the personal estate; and this law relative to descents and 
dower, shall remain in full force until altered by the legislatm'e 
of the district. — And until the governor and judges shall adopt 
laws as hereinafter mentioned, estates in the said teiTitory may 
be devised or bequeathed by wills in writing, signed and sealed 
by him or her, in whom the estate may be (being of full age) and 
attested by 3 witnesses; — and real estates may be conveyed by 
lease and release, or bargain and sale, signed, sealed, and deliv- 
ered by the person being of full age, in whom the estate may be, 
and attested by 2 witnesses, provided such wills be du\j proved, 
and such conveyances be acknowledged, or the execution thereof 

* The reference numerals refer to corresponding provisions in the 
national constitution. 

(604) 



ORDINANCE OF 1787 605 

duly proved, and be recorded within 1 year after proper magis- 
trates, courts, and registers shall be appointed for that purpose ; 
and personal property may be transferred by delivery; saving, 
however, to the French and Canadian inabitants, and other set- 
tlers of the Kaskaskies, Saint Vincent's, and the neighboring 
villages, who have heretofore professed themselves citizens of 
Virginia, their laws and customs now in force among them, 
relative to the descent and conveyance of property. 

Be it ordained by the authority aforesaid, That there shall be 
appointed from time to time, by congress, a governor, whose 
commission shall continue in force for the term of 3 years, unless 
sooner revoked by congress, he shall reside in the district, and 
have a freehold estate therein, in 1,000 acres of land while in the 
exercise of his office (53). 

There shall be appointed from time to time, by congress, a secre- 
tary, whose commission shall continue in force for 4 years, unless 
sooner revoked; he shall reside in the district, and have a freehold 
estate therein, in 500 acres of land, while in the exercise of his 
office; it shall be his duty to keep and preserve the acts and laws 
passed by the legislature, and the public records of the district, 
and the proceedings of the governor in his executive department; 
and transmit authentic copies of such acts and proceedings, every 
6 months, to the secretary of congress: There shall also be ap- 
pointed a court to consist of 3 judges, any 2 of whom to form a 
court, who shall have a common law jurisdiction, and reside in 
the district, and have each therein a freehold estate in 500 acres 
of land, Avhile in the exercise of their offices; and their commis- 
sions shall continue in force during good behavior (66). 

The governor and judges, or a majority of them, shall adopt 
and publish in the district, such laws of the original states, 
criminal and civil, as may be necessary, and best suited to the 
circumstances of the district, and report them to congress, from 
time to time; which laws shall be in force in the district until the 
organization of the general assembly therein, unless disapproved 
of by congress; but afterwards the legislature shall have author 
ity to alter them as they shall think fit. 

The governor for the time being, shall be commander-in-chiei 
of the militia, appoint and commission all officers in the same, 



606 ORDINANCE OF 1787 

below the rank of general officers; all general officers shall be 
appointed and commissioned b}^ congress (41). 

Previous to the organization of the general assembly, the gov- 
ernor shall appoint such magistrates and other civil officers, in 
each county or township, as he shall find necessary for the pres- 
ervation of the peace and good order in the same: After the gen- 
eral assembly shall be organized, the powers and duties of magis- 
trates and other civil officers shall be regulated and defined by 
the said assembly; but all magistrates and other civil officers, not 
herein otherwise directed, shall, during the continuance of this 
temporary government, be appointed by the governor. 

For the prevention of crimes and injuries, the laws to be 
adopted or made shall have force in all parts of the district, and 
for the execution of process, criminal and civil, the governor 
shall make proper divisions thereof — and he shall proceed from 
time to time, as circumstances may require, to lay out the parts 
of the district in which the Indian titles shall have been extin- 
guished into counties and townships, subject, however, to such 
alterations as may thereafter be made by the legislature. 

So soon as there shall be 5,000 free male inhabitants, of full age, 
in the district, upon giving proof thereof to the governor, they 
shall receive authority, with time and place, to elect representa- 
tives from their counties or townships, to represent them in the gen- 
eral assembly; provided that for every 500 free male inhabitants, 
there shall be 1 representative, and so on progressively with the 
number of free male inhabitants shall the right of representation 
increase, until the number of representatives shall amount to 25; 
after which the number and proportion of representatives shall 
be regulated bj' the legislature: i3rovided that no person be elig- 
ible or qualified to act as a representative, unless he shall have 
been a citizen of one of the United States 3"5^ears, and be a resi- 
dent in the district, or unless he shall have resided in the district 
3 years; and in either case shall likewise hold in his own right, in 
fee simple, 200 acres of land within the same; provided also, that 
a freehold in 50 acres of land in the district, having been a citi- 
zen of one of the states, and being resident in the district, or the 
like freehold and 2 years residence in the district shall be neces- 
sary to qualify a man as an elector of a representative (4). 



ORDINANCE OF 1787 607 

The representatives thus elected, shall serve for the terra of 2 
years (3); and in case of the death of a representative, or removal 
from office, the governm- shall issue a writ to the county or town- 
ship, for w^liich he was a member, to elect another in his stead, to 
serve for the residue of the term. 

The general assembly, or legislature, shall consist of the gov- 
ernor, legislative council, and a house of representatives (2). The 
legislative council shall consist of 5 members, to continue in 
office 5 years, unless sooner removed by congress; any 3 of w^hom 
to be a quorum: and the members of the council shall be nomin- 
ated and appointed in the following manner, to wit: As soon as 
representatives shall be elected, the governor shall appoint a time 
and place for them to meet together, and, when met, they shall 
nominate 10 persons, residents in the district, and each possessed 
of a freehold in 500 acres of land, and return their names to con- 
gress; 5 of whom congress shall appoint and commission to serve 
as aforesaid; and w^henever a vacancy shall happen in the coun- 
cil, by death or removal from office, the house of representatives 
shall nominate 2 persons, qualified as aforesaid, for each .vacancy, 
and return their names to congress; one of whom congress shall 
appoint and commission for the residue of the term. And every 
5 years, 4 montl^s at least before the expiration of the time of 
service of the members of council, the said house shall nominate 
10 persons, qualified as aforesaid, and return their names to con- 
gress; 5 of whom congress shall appoint and commission to serve 
as members of the council 5 years, unless sooner removed (8). 
And the governor, legislative council, and house of representa- 
tives, shall have authority to make laws, in all cases, for the good 
government of the district, not repugnant to the principles and 
articles in this ordinance established and declared. And all bills 
having passed by a majority in the house, and by a majority in 
the council, shall be referred to the governor for his assent; but 
no bill or legislative act whatever, shall be of any force without 
his assent (24). The governor shall have power to convene, pro- 
rogue and dissolve the general assembly, when in his opinion it 
shall be expedient (64). 

The governor, judges, legislative council, secretary, and such 
other officers as congress shall appoint in the district, shall take 



608 ORDINANCE OF 1787 

an oath or affirmation of fidelity, and of office; the governor 
before the president of congress, and all other officers before the 
governor (82). As soon as a legislature shall be formed in the 
district, the council and house assembled, in one room, shall have 
authority, by joint ballot, to elect a delegate to congress, who 
shall have a seat in congress, with a right of debating, but not of 
voting during this temporary government. 

And for extending the fundamental principles of civil and 
religious liberty, which form the basis whereon these republics, 
their laws and constitutions are erected; to fix and extablish those 
principles as the basis of all laws, constitutions, and governments, 
which forever hereafter shall be formed in the said territory: to 
provide also for the establishment of states, and permanent gov- 
ernment therein, and for their admission to a share in the federal 
councils on an equal footing with the original states, at as early 
periods as may be consistent with the general interest (76, 77): 

It is hereby ordained and declared, by the authority aforesaid. 
That the following articles shall be considered as articles of com- 
pact between the original states, and the people and states in the 
said territory, and forever remain unalterable, unless by common 
consent, to wit (1): 

1. No person, demeaning himself in a peaceable and orderly 
manner, shall ever be molested on account of his mode of wor- 
ship or religious sentiments, in the said territory (84). 

2. The inhabitants of the said territory, shall always be entitled 
to the benefits of the writ of habeas corpus (45), and of the trial 
by jury (89, 90); of a proportionate representation of the people 
in the legislature (5), and of judicial proceedings accbrding to the 
course of the common law (90). All persons shall be bailable (91), 
unless for capital offences, where the proof shall be evident, or 
the presumption great. All tines shall be moderate (91); and no 
cruel or unusual punishments shall be inflicted (91). No man 
shall be deprived of his liberty or property, but by the judgment 
of his peers, or the law of the land (89), and should the public 
exigencies make it necessary, for the common preservation, to 
take any person's property (88), or to demand his particular ser- 
vices, full compensation shall be made for the same. And in the 
just preservation of rights and property, it is understood and 



ORDINANCE OF 1787 609 

declared, that no law ought ever to be made, or have force in the 
said territory, that shall in any manner whatever interfere with, 
or affect private contracts or engagements, bona fide, and with- 
out fraud previously formed (51). 

3. Religion, morality and knowledge, being necessary to good 
government and the happiness of mankind, schools and the means 
of education shall forever be encouraged. The utmost good 
faith shall always be observed towards the Indians; their lands 
and property shall never be taken from them without their con- 
sent; and in their property, rights and liberty, they never shall 
be invaded or disturbed, unless in just and lawful wars authorized 
by congress; but laws founded in justice and humanity shall 
from time to time be made, for preventing wrongs being done to 
them, and for preserving peace and friendship with them (28). 

4. The said territory, and the states which may be formed 
therein, shall forever remain a part of this confederacy of the 
United States of America, subject to the articles of confederation, 
and to such alterations therein, as shall be constitutionally made; 
and to all the acts and ordinances of the United States in con- 
gress assembled, conformable thereto. The inhabitants and set- 
tlers in the said territory, shall be subject to pay a part of the 
federal debts, Contracted or to be contracted, and a proportional 
part of the expenses of government, to be apportioned on them 
by congress, according to the same common rule and measure, by 
which apportionments thereof shall be made on the other states; 
and the taxes for paying their proportion, shall be laid and levied 
by the authority and direction of the legislatures of the district 
or districts or new states, as in the original states, within the time 
agreed upon by the United States in congress assembled. The 
legislatures of those districts or new states, shall never interfere 
with the primary disposal of the soil by the United States in con- 
gress assembled, nor with any regulations congress may find 
necessary for securing the title in such soil to the bona fide pur- 
casers (77). No tax shall be imposed on lands the property of 
the United States; and in no case shall non-resident proprietors be 
taxed higher than residents. The navigable waters leading into 
the Mississippi and St. Lawrence, and the carrying places between 
the same, shall be common highways, and forever free, as well to 



610 ORDINANCE OF 1787 

the iiiliabitants of the said territory, as to the citizens of the 
United States, and those of any other states that may be admitted 
into the confederacy, without any tax, impost, or dutj" there- 
for (48). 

5. There shall he formed in the said territory, not less than 3, nor 
more than 5 states; and the boundaries of the states, as soon as 
Yirginia shall alter her act of cession, and consent to the same, 
shall become fixed and established as follows, to wit: The west- 
ern state in the said territor}', shall be bounded hy the ]\Iississippi, 
the Ohio and Wabash rivers; a direct line drawn from the Wabash 
and Post Vincents due north to the territonal line between the 
United Sifates and Canada; and by the said territorial line to the 
lake of the Woods and Mississippi. The middle state shall be 
bounded by the said direct line, the Wabash from Post Vincents 
to the Ohio; by the Ohio, by a direct line drawn due north from 
the mouth of the Great Miami, to the said territorial line, and by 
the said territorial line. The eastern state shall be bounded by the 
last mentioned direct line, the Ohio, Pennsylvania, and the said 
territorial line: provided, however, and it is further understood 
and declared, that the boimdaries of these 3 states, shall be sub- 
ject so far to be altered, that if congress shall hereafter find it 
expedient, they shall have authority to form 1 or 2 states in tliat 
part of the said territory which lies north of an east and west 
line drawn through the southerl}^ bend or extreme of lake 3Iichi- 
gan. And whenever any of the said states, shall have 60,000 free 
inhabitants therein, such state shall be admitted, by its delegates, 
into the congress of the United States, on an equal footing Avith the 
original states, in all respects whatever; and shall be at liberty to 
form a permanent constitution and state government (76): provided 
the constitution and government so to be formed, shall be repub- 
lican (78), and in conformity to the principles contained in these 
articles; and so far as it can be consistent with the general inter- 
est of the confederacj'-, such admission shall be allowed at an 
earlier period, and when there may be a less number of free in- 
habitants in the state than 60,000. 

6. There shall be neither slavery nor involuntary servitude in 
the said territory (98), otherwise than in the punishment of 
crimes, whereof the party shall have been duly convicted: pro- 



ORDINANCE OF 1787 611 

viclecl always, that any person escaping into the same, from whom 
labor or service is lawfully claimed in any one of the original 
states, such fugitive may be lawfully reclaimed, and conveyed to 
the person claiming his or her labor or service as aforesaid (75), 

Be it ordained by the authority aforesaid, That the resolutions 
of the 23d of April, 1784, relative to the subject of this ordinance, 
be, and the same are hereby repealed and declared null and void. 



THE CONSTITUTION OF THE UNITED 
STATES OF AMERICA 

Note.— The paragraphs are marked b\- the numbers by which they are 
referred to throughout the book. The numbers in parentheses refer to cor- 
responding paragraphs in the constitution of the state of New York or in 
this constitution. 

Preamble 

1 We the people of the United States, in order to form a more 
(111) perfect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this constitution for the United States of 
America. 

ARTICLE I— Legislative 
Secttox 1 — Congress 

2 1. All legislative powers herein granted shall be vested in a 
(130) congress of the United States, which shall consist of a senate and 

house of representatives. 

Section 2. — House of representatives 

3 1. Election — The house of representatives shall be composed of 
(136 members chosen every 2d year by the people of the several states; 

to and the electors in each state shall have the qualifications requisite 
135) for electors of the most numerous branch of the state legislature. 

4 2. Qualifications — Xo person shall be a representative who shall 

(147) not (1) have attained the age of 25 years, and (2) been 7 j'ears a 

(148) citizen of the United States, and who shall not (3) when elected, 
(10) be an inhabitant of that state in which he shall be chosen. 

5 3. Apportionment — Representatives and direct taxes shall be 
(142) apportioned among the several states which may be included 

within this union, according to their respective numbers, which 
shall be determined by adding to the whole number of free per- 

(612) 



Sec. 3]!^ CONGRESS: organization 613 

sons, including those bound to service for a term* of years, and 
excluding Indians not taxed, | of all other persons. The actual (98) 
enumeration shall be made within 3 years after the first meeting 
of the congress of the United States, and within every subse- 
quent term of 10 years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for every 
30,000, but each state shall have at least 1 representative; and 
until such enumeration shall be made, the state of New Hamp- 
shire shall be entitled to choose 3; Massachusetts, 8; Rhode Island 
and Providence Plantations, 1: Connecticut, 5; New York, 6; 
New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Vir- 
ginia, 10; North Carolina, 5; South Carolina, 5; and Georgia 3. 

4. Vacancies — When vacancies happen in the representation 6 
from any state, the executive authority thereof shall issue writs (149) 
of election to fill such vacancies. 

5. Officers — The house of representatives shall choose their 7 
speaker and other officers, and shall have the sole power of im- (150) 
peachment. (218) 

Section 3— Senate 

1. Mectio7)^~ThG senate of the United States shall be composed 8 
of 2 senators from each state, chosen by the legislature thereof, (137) 
for six years; and each senator shall have 1 vote. 

2. Immediately after they shall be assembled in consequence 9 
of the first election, they shall be divided as equally as may be 
into 3 classes. The seats of the senators of the 1st class shall be 
vacated at the expiration of the 2d year, of the 2d class at the 
expiration of the 4th year, and of the 3d class at the expiration of 
the 6th year, so that i may be chosen every 2d year; and if va- 
cancies happen, by resignation -or otherwise, during the recess of 
the legislature of any state, the executive thereof may make 
temporary appointments until the next meeting of the legisla- 
ture, which shall then fill such vacancies. 

3. Qualifications— ^o person shall be a senator who shall not 10 
have (1) attained the age of 30 years, and (2) been 9 years a citi- (148) 
zen of the United States, and who shall not (3), when elected, be (4) 
an inhabitant of that state for which he shall be chosen. 

4. Officers— Th.Q vice-president of the United States shall be 11 



614 NATIONAL CONSTITUTION ^^[Art. I 

(189) president of the senate, but shall have no vote unless they be 
equally divided. 

12 5. The senate shall choose their other officers, and also a president 
(150) pw tempcn^e in the absence of the vice-president, or when he shall 

exercise the office of president of the United States. 

13 6. Impeachment — The senate shall have the sole power to try all 
(218) impeachments. "When sitting for that purpose, the}' shall be 
(61) on oath or affirmation. When the president of the United States 

is tried, the chief justice shall preside; and no person shall be 
convicted without the concurrence of f of the members present. 

14 7. Judgments in cases of impeachments shall not extend fur- 
(218) ther than removal from office, and disqualification to hold and en- 
(187) joy any office of honor, trust or profit under the United States; 

but the party convicted shall, nevertheless, be liable and subject 
to indictment, trial, judgment and punishment, according to law. 

Section 4 — Elections and meetings of congress 

15 1. Elections — The times, places and manner of holding elections 

(149) for senators and representatives shall be prescribed in each state 
by the legislature thereof; but the congress may at any time by 
law make or alter such regulations, except as to the place of 
choosing senators. 

16 2. Meetings — The congress shall assemble at least once in every 
(265) 3'ear; and such meeting shall be on the 1st Monday in December, 

unless they shall by law appoint a different day. 

Section 5 — Organization 

17 1. Quorum — Each house shall be the judge of the elections, re- 

(150) turns and qualifications of its own members, and a majority of 
each shall constitute a quroum to do business; but a smaller num- 
ber may adjourn from day to da}', and may be authorized to com- 
pel the attendance of absent members, in such manner and under 
such penalties as each house may provide. 

18 2. Rules — Each house may determine the rules of its proceed- 

(150) ings, punish its members for disorderly behavior, and ^\-ith the 
concurrence of f, expel a member, 

19 3. Journal — Each house shall keep a journal ot its proceedings, 

(151) and from time to time publish the same, excepting such parts as 
(178) maj', in their judgment, require secrecy; and the yeas and nays 



Sec. 7]2 4 CONGRESS: organization 615 

of ithe members of either house on any question shall, at the (227) 
desire of | of those present, be entered on the journal. 

4. Adjournme?it— Neither house, during the session of congress, 20 
shall, without the consent of the other, adjourn for more than 3 (lol) 
days, nor to any other place than that in which the two houses 
shall be sitting. 

Sectiox 6— Members as individuals 

1. Pay and privileges— The senators, and representatives shall 21 
receive a compensation for their services, to be ascertained by (146) 
law, and paid out of the treasury of the United States. They 
shall in all cases except treason, felony and breach of the peace, 

be privileged from arrest during their attendance at the sessions 
of their respective houses, and in going to and returning from (152) 
the same; and for any speech or debate in either house they shall 
not be questioned in any other place. 

2. Prohibitions— No senator or representative shall, during the 22 
time for which he was elected, be appointed to any civil office (147) 
under the authority of the United States, which shall have been 
created, or the emoluments whereof shall have been increased, 
during such time; and no person holding any office under the (148) 
United States shall be a member of either house during his con- 
tinuance in office. 

Section 7 — Re^^nue bills; the veto 23 

1. Revenue hills — All bills for raising revenue shall originate in (173) 
the house of representatives; but the senate may propose or con- (177) 
cur with amendments as on other bills. (^ ' ^) 

2. TJie veto — Every bill which shall have passed the house of 24 
representatives and the senate shall, before it become a law, be (191) 
presented to the president of the United States; if he approve, 

he shall sign it; but if not he shall return it, with his objections, 
to that house in which it shall have originated; who shall enter 
the objections at large on their journal, and proceed to reconsider 
it. If, after such reconsideration, f of that house shall agree to pass 
the bill, it shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered; and, if ap- 
proved by I of that house, it shall become a law. But in all 
such cases, the votes of houses shall be determined bv 3'eas and 



616 NATIONAL CONSTITUTION ~4|-^p^ J 

nays, and the names of the persons voting for and against the 
bill shall be entered on the journal of each house respectively. 
If any bill shall not be returned by the president within 10 days 
(Sundays excepted) after it shall have been presented to him, the 
same shall be a law in like manner as if he had signed it, unless 
the congress, by their adjournment, prevent its return, in which 
case it shall not be a law. 

25 3. Every order, resolution or vote, to which the concurrence 
(154) of the senate and the house of representatives may be necessary 

(except on a question of adjournment), shall be presented to the 
president of the United States; and, before the same shall take 
effect, shall be approved by him; or, being disapproved by him 
shall be repassed by | of the senate and house of representatives, 
according to the rules and limitations prescribed in the case of a 
bill. 

26 Sectiox 8 — Legislati\t: powers 
(174) The congress shall have power: 

(177) 1. To lay and collect taxes, duties, imposts, and excises; to 

(233) pay the debts and provide for the common defence and general 

(230) welfare of the United States; but all duties, imposts and excises 

(232) shall be uniform throughout the United States. 

27 2. To borrow money on the credit of the United States. 

28 3. To regulate commerce with foreign nations, and among the 
/126) several states, and with the Indian tribes. 

29 4. To establish an uniform rule of naturalization, and unifonn 
laws on the subject of bankruptcies throughout the United States. 

30 5. To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures. 

31 6. To provide for the punishment of counterfeiting the secuii- 
ties and current coin of the United States. 

32 7. To establish post-oflSces and post-roads. 

33 8. To promote the progress of science and useful arts, by secur- 
ing for limited times, to authors and inventors, the exclusive 
right to their respective writings and discoveries. 

84 9. To constitute tribunals inferior to the supreme court. 
35 10. To define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations. 



Sec. 9] 4 6 congress: powers 617 

11. To declare war, grant letters of marque and reprisal, and 36 
make rules concerning captures on land and water. 

12. To raise and support armies; but no appropriation of 37 
money to that use shall be for a longer term than 2 years. 

13. To provide and maintain a navy. 38 

14. To make rules for the government and regulation of the 39 
land and naval forces. 

- 15. To provide for calling forth the militia to execute the laws 40 
of the union, suppress insurrections, and repel invasions. 

16. To provide for organizing, arming and disciplining the 41 
militia, and for governing such part of them as may be employed (269 
in the service of the United States; reserving to the states respec- to 
tively the appointment of the officers and the authority of 274) 
training the militia according to the discipline prescribed by con- 
gress. 

IT. To exercise exclusive legislation in all cases whatsoever, 42 
over such district (not exceeding 10 miles square) as may, by ces- 
sion of particular states, and the acceptance of congress, become 
the scat of government of the United States; and to exercise like 
authority over all places purchased by the consent of the legisla- 
ture of the state in which the same shall be, for the erection of 
forts, magazines, arsenals, dockyards, and other needful build- 
ings; and 

18. To make all laws which shall be necessary and proper for 43 
carrying into execution the foregoing powers, and all other (136) 
powers vested by this constitution in the government of the 
United States, or in any department or officer thereof. 

Sectiox 9 — Prohibitions upoisr the United States 

1. The migration or importation of such persons as any of the 44 
states now existing shall think proper to admit, shall not be pro- 
hibited by the congress prior to the year 1808; but a tax or duty (98) 
may be imposed on such importation not exceeding |10 for each 
person. 

2. The privilege of the wiit of habeas corpus shall not be sus- 45 
pended, unless when, in case of rebellion or invasion, the public (115) 
safety may require it. 

3. No bill of attainder, or ex post facto law shall be passed. 46 



618 XATIOXAL COXSTITUTIOX '^'[Alt. I 

47 4. Xo capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration hereinbefore directed to be 
taken, 

48 5. Xo tax or duty shall be laid on any articles exported from 
any state. Xo preference shall be gi%'en by any regulation of 
commerce or revenue to the ports of one state over those of an- 
other; nor shall vessels bound to or from one state be obliged 
to enter, clear or pay duties in another. 

49 6. Xo money shall be drawn from the treasury but in conse- 
(174) ciuence of appropriations made by law: and a regular statement 
(172) and account of the receipts and expenditures of all public money 

shall be published from time to time. 

50 7. Xo title of nobility shall be granted by the United States; 
and no person holding any office of profit or trust under them 
shall, without the consent of the congress, accept of any present, 
emolument, office or title of any kind whatever, from any king, 
prince, or foreign state. 

51 Sectiox 10 — Pkghibitioxs upox the states - 

(62) 1. Absolute — Xo state shall (1) enter into any treaty, alliance or 

(36) confederation; (2) grant letters of marque and reprisal; (3) coin 
^,)-c money; (4) emit bills of credit; (5) make anything but gold and 
(46) silver coin a tender in payment of debts; (6) pass any bill of 
(51) attainder, ex post facto law. or law impairing the obligation of 
(50) contracts; or (7) grant any title of nobility. 

52 2. Excejyt by consent of congress — Xo state shall, without consent 
(26) of congress, (1) lay any imports or duties on imports or exports, 

except what may be absolutely necessary for executing its in- 
spection laws; and the net produce of all duties and imposts laid 
by any state on imports or exports shall be for the use of the 
treasury of the United States, and all such laws shall be subject 
to the revision and control of the congress. Xo state shall, with- 

(37) out the consent of congress, (2) lay any duty of tonnage, (3) 
[o'S) keep troops or ships of war in time of peace, (4) enter into any 
(62) agreement or compact with another state, or with a foreign 
(36) power, or (5) engage in war. unless actually invaded, or in such 

imminent danger as will not admit of delay. 



Art. 11]^^ THE PRESIDENT; ELECTION 619 

ARTICLE II— Executive 

Section 1 — The President and a^ce-president 

1. Election — The executive power shall be vested in a president 53 
of the United States of America. He shall hold his office during (183) 
the term of 4 years; and together with the vice-president chosen 

for the same term, be elected as follows: 

2. Each state shall appoint, in such manner as the legislature 54 
thereof may direct, a number of electors equal to the whole num- (185) 
ber of senators and representatives to which the state may be 
entitled in the congress; but no senator or representative, or per- 
son holding an office of trust or profit under the United States, 
shall be appointed an elector. 

The following clause has been superseded by article XII of the amend- 
ments: 

3. The electors shall meet in their respective states, and vote by ballot 55 
for 2 persons, of whom one at least shall not be an inhabitant of the same (95 
state with themselves. And they shall make a list of all the persons voted to 
for, and of the number of votes for each, which list they shall sign and cer- 97) 
tify, and transmit, sealed, to the seat of the government of the United 
States, directed to the president of the senate. The president of the senate 
shall, in the presence of the senate and house of representatives, open all 

the certificates, and the votes shall then be counted. The person having 
the greatest number of votes shall be the president, if such number be a 
majority of the whole number of electors appointed, and if there be more 
than one who have such majority, and have an equal number of votes, then 
the house of representatives shall immediately choose by ballot one of them 
for president: and if no person have a majority, then, from the 5 highest 
on the list, the said house shall, in like manner, choose the president. 
But in choosing the president, the votes shall be taken by states, the repre- 
sentation from each state having 1 vote: a quorum for this purpose shall con- 
sist of a member or members from % of the states, and a majority of all the 
states shall be necessary to a choice. In every case, after the choice of the 
president, the person having the greatest number of votes of the electors 
shall be the vice-president. But if there should remain 2 or more who have 
equal votes, the senate shall choose from them, by ballot, the vice-president. 

4. The congress may determine the time of choosing the elec- 56 
tors, and the day on which they shall give their votes, which day 
shall be the same throughout the United States. 

5. QaalificaUons—^o person, except (1) a natural born citizen 57 
or a citizen of the United States at the time of the adoption of (184) 
this constitution shall be eligible to the office of president; neither 
shall any person be eligible to that office who shall not have (2) 



620 NATIONAL CONSTITUTION ^^[Art. II 

attained to the age of 35 years, and (3) been 14 j'ears a resident 
within the United States. 

58 6. Vacancy — In case of the removal of the president from office, 

(188) or of his death, resignation or inability to discharge the powers 
and duties of said office, the same shall devolve on the vice-presi- 
dent; and the congress may, by law, provide for the case of re- 

(189) moval, death, resignation or inability, both of the president and 
vice-president, declaring what officer shall then act as president, 
and such officer shall act accordingly, until the disability be re- 
moved, or a president shall be elected. 

59 7. Salary — The president shall, at stated times, receive for his 
(186) services a compensation which shall neither be increased or dimin- 
(167) ished during the period for which he shall have been elected; and 
(268) he shall not receive within that period any other emolument from 

the United States, or any of them. 

60 8. OatJi — Before he enter on the execution of his office, he shall 
(82) take the following oath of affirmation: 

(280) " I do solemnly swear (or affirm) that I will faithfully execute 

(281) the office of president of the United States; and will, to the. best 
of my ability, preserve, protect and defend the constitution of 
the United States. " 

Section 2 — Powers of the president 

61 1. The president shall be (1) commander-in-chief of the army and 

(186) navj' of the United States, and of the militia of the several states, 
when called into the actual service of the United States. He may 
(2) require the opinion, in writing, of the principal officer in each 
of the ex'ecutive departments, upon any subject relating to the 

(187) duties of their respective offices; and he shall (3) have power to 
grant reprieves and pardon for offences against the United States, 
except in cases of impeachment. 

62 2. He shall (4) have power, by and with the advice and consent of 
the senate, to make treaties, provided f of the senators present 
concur; and he shall (5) nominate, and by and with the advice 

(201) and consent of the senate shall appoint, {a) ambassadors, ip) other 

(210) public ministers and consuls, (c) judges of the supreme court, 

(194) and {d) all other officers of the United States whose appointments 

(195) are not herein otherwise provided for, and which shall be estab- 



(211) 

(231) 



Art. III]^^* PRESIDENT; NATIONAL COURTS 621 

lislied by law. But the congress maj^ by law, vest the appoint- (2o2) 

nient of such inferior officers as they think proper, in the presi- (192) 
dent alone, in the courts of law, or in the heads of departments. 

8. The president shall (6) have power to fill up all vacancies 63 

that may happen during the recess of the senate, by grant- (194) 

ing commissions which shall expire at the end of their next li??) 
session. 

Section 3 

1. He shall, from time to time, (7) give to the congress informa- 64 
tion of the state of the union, and (8) recommend to their con- (186) 
sideration such measures as he shall judge necessary and expedi- 
dent. He may, (9) on extraordinary occasions, convene both 
houses, or either of them; and in case of disagreement between 
them with respect to the time of adjournment, lie may (10) ad- 
journ them to such time as he shall think proper. He shall (11) 
receive ambassadors and other public ministers. He shall (12) 
take care that the laws be faithfully executed; and shall (13) 
commission all the officers of the United States. 

Sectiox 4 — Impeachments 

1. The president, vice-president, and all civil officers of the 65 
United States, shall be removed from office on impeachment for, (216) 
and conviction of, treason, briberv or other higher crimes and mis- (218) 
demeanors. 

ARTICLE III— Judicial 
Section 1 — Courts 

1. The judicial power of the United States shall be vested in 66 
one supreme court, and in such inferior courts as the congress (210) 
may, from time to time, ordain and establish. The judges, both (201) 
of the supreme and inferior courts, shall hold their offices during (207) 
good behavior; and shall, at stated times, receive for their ser- (216) 
vices a compensation which shall not be diminished during their (217) 
continuance in office. 

Section 2 — Jurisdiction 

1. Extent— T\\^ judicial power shall extend to (1) all cases in 67 
law and equity arising under this constitution, the laws of the (208) 
United States and treaties made, or which shall be made under (206) 



622 NATIONAL CONSTITUTION ^ '[Art. Ill 

(213) their authority; to (2) all cases affecting ambassadors, other pub- 
lic ministers and consuls; to (3) all cases of admirality and mari- 
time jurisdiction; to (4) controversies to which the United States 
shall be a party; to controversies (5) between 2 or more states; 
(6) between a state and citizens of another state ; (7) between citi- 
zens of different states; (8) between citizens of the same state 
claiming lands under grants of .different states, and (9) between a 
state, or the citizens thereof, and foreign states, citizens or sub- 
jects. 

68 2. Origindl and npjjellate — In all cases affecting ambassadors, 
other public ministers and consuls, and those in which a state 
shall be party, the supreme court shall have original jurisdic- 
tion. In all the other cases before mentioned, the supreme court 

(212) shall have appellate jurisdiction, both as to law and fact, with 
such exceptions and under such regulations as the congress shall 
make. 

69 3. Criminal — The trial of all crimes, except in cases of im- 
(113) peachment, shall be by jury, and such trial shall be held in the 

state where the said crimes shall have been committed; but when 
not committed within any state, the trial shall be at such place or 
places as the congress may by law have directed. 

Section 3 — Treason 

70 1. Definition rt;i^j9?'t>«9/— Treason against the United States shall 
consist only in levying war against them or in adhering to their 
enemies, giving them aid and comfort. Xo person shall be con- 

. victed of treason, unless on the testimony of 2 witnesses to the 
same overt act, or on confession in open court. 

71 2. Limit — The congress shall have power to declare the pun- 
ishment of treason; but no attainder of treason shall work cor- 
ruption of blood, or forfeiture, except during the life of the per- 
son attainted. 

ARTICLE IV— Relations of states 

Section 1 — Public records 

72 1. Full faith and credit shall be given in each state to the pub- 
lic acts, records and judicial proceedings of every other state; 
and the congress may, by general laws, prescribe the manner in 



Art, IV] ^9 COURTS; relations of states 623 

which such acts, records and proceedings shall be proved, and the 
effect thereof. 

Section 2 — Rights of citizens 

1. In other states— T\\e citizens of each state shall be entitled to 73 
all privileges and immunities of citizens in the several states. 

2. Extradition — A person charged in any state with treason, 74 
felony or other crime, who shall flee from justice, and be found 

in another state, shall, on demand of the executive authority of 
the state from which he fled, be delivered up, to be removed to 
the state having jurisdiction of the crime. 

3. ^-1 relic of slavery — No person held to service or labor in one 75 
state under the laws thereof, escaping into another shall, in con- (98) 
sequence of any law or regulation therein, be discharged from 
such service or labor; but shall be delivered upon claim of the 
party to whom such service or labor may be due. 

Section 3 — New states and territories 

1. New states — New states may be admitted by the congress in- 76. 
to this union; but no new state shall be formed or erected within 
the jurisdiction of any other state, nor any state be formed by the 
junction of 2 or more states, or parts of states, without the con- 
sent of the legislatures of the states concerned, as well as of the 
congress. 

2. Territories — The congress shall have power to dispose of, 77 
and make all needful rules and regulation respecting, the territory (237) 
or other property belonging to the United States, and nothing in (121) 
this constitution shall be so construed as to prejudice any claims 

of the United States, or of any particular state. 

Section 4 — National protection 

1. The United States shall guarantee to every state in this union 78 
a republican form of government, and shall protect each of them 
against invasion; and, on application of the legislature, or of the 
executive (when the legislature cannot be convened), against do- 
mestic violence. 

ARTICLE V— Amendments 

1. The congress, whenever f of both houses shall deem it neces- 79 
sary, shall propose amendments to this constitution; or, on the (287) 
application of the legislatures of f of the several states, shall 



624 NATIONAL CONSTITUTION '^[Art. V 

call a convention for proposing amendments, Avliich, in either 

case, shall be valid to all intents and purposes, as part of this 

constitution when ratilied b}' the legislatures of f of the several 

states, or by conventions of f tliereof , as the one or the other mode 

of ratification may be proposed by congress; provided that no 

(44) amendment, which ma}^ be made prior to the year 1808, shall in 

(47) any manner affect the 1st and 4th clauses in the 9th section of the 

(8) 1st article, and tlmt no state without its consent, shall be deprived 

of its equal suffrage in the senate. 

AKTICLi: VI— Sim dry i)io visions 

80 1. National debts — All debts contracted and engagements en- 
(128) tered into before the adoption of this constitution shall be as 

valid against the United States under this constitution, as under 
the confederation. 

81 2. National law supreme — This constitution, and the laws of 
the United States which shall be made in pursuance thereof, and 
all treaties made, or which shall be made under the authority of 
the United States, shall be the supreme law of the land; and the 
judges in ever}' state shall be bound thereby, anything in the 
constitution or laws of any state to the contrary notwithstanding. 

82 3. OatJis — The senators and representatives before mentioned, 
(280) and the members of the several state legislatures, and all executive 

and judicial officers, both of the United States and of the several 
states, shall be bound bj' oath or affirmation to support this con- 
stitution; but no religious test sljall ever be required as a qualifi- 
cation to any office or public trust under the United States. 

ARTICLE VII— Establishnieiit 

83 1. The ratification of the conventions of 9 states shall be suffi- 
(290) cient for the establishment of this constitution between the states 

so ratifying the same. — Constitution ratified by states. 17S7-9U. 
AMEND3IENTS 
I — Freedom of religion, speech, and petition 

84 Congress may make no. law respecting an establishment of 
(114) religion, or prohibiting the free exercise thereof; or abridging the 

(119) freedom of speech or of the press; or the right of the people 

(120) peaceably to assemble, and to petition the government for a 
redress of grievances. — {1791). 



.I_YI]9 AMENDMENTS 625 

II— Arms 85 

A well regulated militia being necessary to the security of a (269 
free state, the right of the people to keep and bear arms shall not to 
be infringed. — [1791). 274) 

III— Quartering' of soldiers 

Xo soldier shall, in time of peace, be quartered in any house 86 
without the consent of the owner, nor in time of war but in a 
manner to be prescribed by law. — {1791). 

IV.— Search warrants 

The- right of the people to be secure in their persons, houses, 87 
papers and effects, against unreasonable searches and seizures, shall 
not be violated; and no warrants shall issue but upon probable 
cause, supported by oath or affirmation, and particularly describ- 
ing the place to be searched, and the persons or things to be 
seized.— (irS'i.) 

V — Criminal proceedings 

No person shall be held to answer for a capital or otherwise 88 
infamous crime, unless on a presentment or indictment of a grand (117) 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or public danger; 
nor shall any person be subject for the same offence to be twice 
put in jeopardy of life or limb; nor shall be compelled, in any 
criminal case, to be a witness against himself, nor be deprived of 
life, liberty or property, without due process of law; nor shall 
private property be taken for public use without just compensa- (118) 
sation. — {1791. 

VI — Criminal proceedings 

In all criminal proceedings, the accused shall enjoy the right to 89 
a speedy and public trial, by an impartial jury of the state and 
district wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law; and to be 
informed of the nature and cause of the accusation; to be con- 
fronted with the witnesses against him; to have compulsory pro- 
cess for obtaining witnesses in his favor, and to have the assist- 
ance of counsel for his defence. — {1791.) 

VII —Trial by jury 

In suits at common law, where the value in controversy shall 90 



626 NATIONAL CONSTITUTION ^^'[YJI 

(113) exceed $20, the right of trial by jury shall be preserved; and no 
fact tried by a jury shall be otherwise re-examined in any court 
of the United States, than according to the rules of the common 
law— (i79i.) 

A^III — Excessive bail and pimisliDient 

91 Excessive bail shall not be required, nor excessive fines imposed. 
(116) nor cruel and unusual punishments inflicted. — {1791.) 

IX— Kij?|its not named 

92 The enumeration in the constitution of certain rights shall not 
be construed to deny or disparage others retained by the people. 
-{1791.) 

X— Powers reserved by the states 

93 The powers not delegated to the United States by the constitu- 
tion, nor prohibited by it to the states, are reserved to the states 
respectively', or to the people. — {1791.) 

XI— Suits against states 

94 The judicial power of the United States shall not be construed 
to extend to any suit in law or equitj', commenced or prosecuted 
a'gainst one of the United States by citizens of another state, or 
b}' citizens or subjects of any foreign state. — {179S.) 

XII — Election of president 

95 1. The electors shall meet in their respective states, and vote by 
(55) ballot for president and vice-president, one of whom at least shall 

not be an inhabitant of the same state with themselves. They 
shall name in their ballots the person voted for as president, and 
in distinct ballots the person voted for as vice-president; and they 
shall make distinct lists of all persons voted for as president, and 
of all persons voted for as vice-president, and of the nimiber of 
Azotes for each; which lists they shall sign and certify, and trans- 
mit sealed to the seat of government of the United States, directed 
to the president of the senate. The president of the senate shall, 
in the presence of the senate and house of representatives, open 
all the certificates, and the votes shall then be counted. The per- 
son having the greatest number of votes for president shall be the 
president, if such number be a majority of the whole number of 
electors appointed; and if no person have such majority, then from 



XIV] '^^ AMENDMENTS . 627 

the persons having the highest numbers, not exceeding 3, on the 
list of those voted for as president, the house of representatives (185) 
shall choose immediately, by ballot, the president. But in choos- 
ing the president, the votes shall be taken by states, the repre- 
sentation from each state having one vote; a quorum for this pur- 
pose shall consist of a member or members from f of the states, 
and a majority of all the states shall be necessary to a choice. And 
if the house of representatives shall not choose a president, when- 
ever the right of the choice shall devolve upon them, before the 
4th day of March next following, then the vice president shall 
act as president as in the case of the death or other constitutional 
disability of the president. 

2. The person having the greatest number of votes as vice- 96 
president shall be the vice-president, if such number be a major- 
ity of the whole number of electors appointed; and if no person 
have a majority, then from the 2 highest numbers on: the list the 
senate shall choose the vice-president. A quorum for the purpose 
shall consist of | of the whole number of senators, and a majority 

of tlie whole number shall be necessary to a choice. 

3. But no person constitutionally ineligible to the office of 97 
president shall be eligible to that of vice-president of the United (189) 
States.— (i<S'^4) (1^^) 

XIII— Slavery abolished 
Neither slavery nor involuntary servitude, except as a punish- 98 
ment for crime, whereof the party shall have been duly con- 
victed, shall exist within the United States, or any i:klace subject to 
their jurisdiction. Congress shall have power to enforce this 
article by appropriate legislation.— (i56<5.) 

XIV— Civil rights 

1. Civil rights— K\\ persons born or naturalized in the United 99 
States and subject to the jurisdiction thereof, are citizens of the 
United States and of the state wherein they reside. No state 
shall make or enforce any law which shall abridge the privileges 
or immunities of the citizens of the United States; nor shall any 
state deprive any person of life, liberty or property, without due 
process of law, nor deny to any person within its jurisdiction the 
equal protection of the laws. 



628 NATIONAL CONSTITUTION ^^'^[XIV 

100 2. ApportioiDiient of representatives — Representatives shall be 
(139) apportioned among the several states according to their respec- 
(142) tive numbers, counting the whole number of persons in each 
state, excluding Indians not taxed. But when the right to vote 
at any election for the choi(.-e of electors for president and vice- 
president of the United States, representatives in congress, the 
executive and judicial officers of a state, or the members of the 
legislature thereof, is denied to any of the male inhabitants of 
such state, being 21 years of age, and citizens of the United 
States, or in any waj^ abridged, except for participation in rebel- 
lion or other crime, the l^asis of representation therein shall be 
reduced in the proportion which the number of such male persons 
shall bear to the whole luunber of male citizens 21 years of age in 
such state. 

101 3. Political disabilities — No person shall be a senator or repre- 
sentative in congress, or elector of president and vice-president, 
or hold any office, civil or military, under the United States, or 
under any state, who having previously taken an oath as a mem- 
ber of congress, or as an officer of the United States, or as any 
member of any state legislature, or as an executive or judicial 
officer of any state, to support the constitution of the United 
States, shall have engaged in insurrection or rebellion against the 
same, or given aid or comfort to the enemies thereof. But con- 
gress may, by a |^ vote of each house, remove such disability. 

• 102 4. Public debt— The validity of the public debt of the United 
(233) States authorized by law, including debts incurred for payment of 
pensions and bounties for services in suppressing insurrection and 
rebellion, shall not be questioned. But neither the United States 
nor any state shall assume or pay any debt or obligation incuiTed 
in aid of insurrection or rebellion against the United States, or 
any claim for loss or emancipation of any slave; but all such 
debts, obligations and claims shall be held illegal and void. 
103 5. The congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. — {1S6S.) 



XV]10 5 AMENDMENTS 629 

XV— Suffrage 

1. The right of the citizens of the United States to vote shall 104 
not be denied or abridged b}' the United States or by any state on (112) 
account of race, color, or previous condition of servitude. 

2. The congress shall have power to enforce this article by ap- 105 
propriate legislation. — (1870.) 



THE CONSTITUTION OF THE STATE OF 
NEW YORK 

Adopted November 6, 1894 

As Amended and in Force January 1, 1901 

Note— The present constitution is based upon that of 1846. and contains 
comparatively few chanisres. Every section that has been changed mater- 
ially contains at the end a date. If this be '• 1846-94 '". the section was con- 
tained in the constitution of 1846 but has been amended. If the data be 
"1894", the section is new. The paragraphs are marked by the numbers 
by which they are referred to throughout the book The numbers in paren- 
theses refer to corresponding paragraphs in the national constitution or in 
this. 

111 We, the people of the state of New York, grateful to Almighty 
(1) God for our freedom, in order to secure its blessings, do estab- 
lish THIS CONSTITUTION. 

AKTICJLE I— Individuctl Rights 

112 1. THsfrarichiBemeni — No member of this state shall be disfran- 
(104) chised. or deprived of an}' of the rights or privileges secured to 

any citizen thereof, unless by the law of the land, or the judg- 
ment of his peers. 

113 2. Trial hy jury — The trial by jury in all cases in which it has 
(69) been heretofore used sliall remain inviolate forever; but a jury 
(90) trial may be waived for the parties in all civil cases in the maimer 

to be prescribed by law. 

114 8. Religious liberty — The free exercise and enjoyment of relig- 
(84) ious profession and worship, without discrimination or preference, 
(281) shall forever be allowed in this state to all mankind; and no per- 
son shall be rendered incompetent to be a witness on account of 
his opinions on matters of religious belief; but the liberty of con- 
science hereb}' secured shall not be so construed as to excuse acts 
of licentiousness, or justify practices inconsistent with the peace 
or safety of this state. 

(630) 



Art. I]^^^ INDIVIDUAL RIGHTS 631 

4. Huberts corpus, dr.— The privilege of the writ of liabeas cor- 115 
pus shall not be suspended, unless when, in cases of rebellion or (45) 
invasion, the public safety may require its suspension. 

5. Excessive bail and fines. — Excessive bail shall not be required 116 
nor excessive fines imposed, nor shall cruel and unusual punish- (91) 
meuts be intlicted, nor shall witnesses be unreasonably de- 
tained. 

6. Criminal 2»'oceedings — Xo person shall be held to answer for 117 
a capital or otherwise infamous crime (except in cases of impeach- (88) 
ment, and in cases of militia when in actual service, and the land 

and naval forces in time of war, or which this state may keep 
with the consent of congress in time of peace, and in cases of 
petit larceny, under' the regulation of the legislature), unless on 
presentment or indictment of a grand jury, and in any trial in 
any court whatever the party accused shall be allowed to appear 
and defend in person and with counsel as in civil actions. No per- 
son shall (1) be subject to be twice put in jeopardy for the same 
offence; nor shall he (2) be compelled in any criminal case to be a 
witness against himself; nor (3) be deprived of life, liberty or 
property without due process of law; nor (4) shall private prop- 
erty be taken for public use, without just compensation. 

7. Private property for public use— When private property shall 118 
be taken for any public use, the compensation to be made there- (88) 
for, when such compensation is not made by the state, shall be 
ascertained by a jury or by not less than 3 commissioners appoint- 
ed by a court of record, as shall be prescribed by law. Private 
roads may be opened in the manner to be prescribed by law; but 

in every case the necessity of the road and the amount of all dam- 
age to be sustained by the opening thereof shall be first deter- 
mined by a jury of freeholders, and such amount, together with 
the expenses of the proceeding, shall be paid by the person to be 
benefited. General laws may be passed permitting the owners 
or occupants of agricultural lands to construct and maintain for 
the drainage thereof, necessary drains, ditches and dykes upon 
the lands of others, under proper restrictions and with just com- 
pensation, but no special laws shall be enacted for such purposes. (171) 
— (1846-94). 



632 NEW YORK CONSTITUTION ^^^[Art. I 

119 8. Free speech and pre^a — Every citizen may freely speak, write 
(84) and publish liis sentiments on all subjects, being responsible 

for the abuse of that right; and no law shall be passed to re- 
strain or abridge the liberty of speech or of the press. In all 
criminal prosecutions or indictments for libels, the truth ma}' be 
given in evidence to the jury; and if it shall appear to the jury 
that the matter charged as libellous (1) is true, and was published 
(2) with good motives and (8) for justitiable ends, the party shall 
be acquitted; and the jury shall have the right to determine the 
law and the fact. 

120 9. Petitions, divorces, gambling — No law shall be passed abridg- 
(77) ing the right of the people peaceably to assemble and to petition^ 

the government, or any department thereof; nor shall any divorce 
be granted otherwise than by due judicial proceedings; nor shall 
any lottery or the sale of lottery tickets, pool-selling, book-mak- 
ing, or any other kind of gambling hereafter be authorized or 
allowed within this state; and the legislature shall pass appropri- 
ate laws to prevent offences against any of the provisions of this 
section . — ( lS^fi-94). 

121 10. Property in lands — The people of this state, in their right 
(77) of sovereignty, are deemed to possess the original and ultimate 

property in and to all lands within the jurisdiction of the state; 
and all lands the title to which shall fail, from a defect of heii^s, 
shall revert, or escheat to the people. 

122 11. Feudal tenures — All feudal tenures of every description, 
with all their incidents, are declared to be abolished, saving, how- 
ever, all rents and services certain which at any time heretofore 
have been lawfully created or reserved. 

123 12. Allodial tenures — All lands within this state are declared to 
be allodial, so that, subject only to the liability to escheat, the 
entire and absolute property is vested in the owners, according to 
the nature of their respective estates. 

124 13. Limit of leases — No lease or grant of agricultural land, for 
a longer period than 12 years, hereafter made, in which shall be 
reserved any rent or service of any kind, shall be valid. 

125 14. Fines, quarter-sales — All tines, quarter-sales, or other like 
restraints upon alienation, reserved in any grant of land hereafter 
to be made, shall be void. 



Art. II] 1 =^ '^' INDIVIDUAL RIGHTS 638 

15. Indian lands — Xo purcliase or contract for the sale of lands 126 
in this state, made since the 14th day of October, 1775; or which (28) 
ma}' hereafter be made, of, or with the Indians, shall be valid, 
unless made under the authority, and with the consent of the leg- 
islature. • 

16. Common and statute lair — Such parts of the common law, 127 
and of the acts of the legislature of the colon}' of New York, as 
together did form the law of the said colony, on the 19tli daj' of 
April, 1775, and the resolutions of the congress of the said colony, 

and of the convention of the state of New York, in force on the 
20th day of April, 1777, which have not since expired, or been re- 
pealed or altered; and such acts of the legislature of this state as 
are now in force, shall be and continue the law of this state, sub- 
ject to such alterations as the legislature shall make concerning 
the same. But all such parts of the common law, and such of the 
said acts, or parts thereof, as are repugnant to this constitution, 
are hereby abrogated. 

17. Grants of lands — All grants of land within tliis state, made 128 
by the king of Great Britain, or persons acting under his author- 
ity, after the 14th day of October. 1775, shall be null and void; (77) 
but nothing contained in this constitution shall affect any grants 

of land within this state, made by the authority of the said king 
or his predecessors, or shall annul any charters to bodies politic (51) 
and corporate, by him or them made, before that day; or shall 
affect any such grants or charters since made by this state, oi- by 
persons acting under its authority; or shall impair the obhgation (80) 
of any debts contracted by the state, or individuals, or bodies cor- 
porate, or any other rights of property, or any suits, actions, 
rights of action, or other proceedings in courts of justice. 

18. M limit to damages for death— The right of action now ex- 129 
isting to recover damages for injuries resulting in death, shall 
never be abrogated; and the amount recoverable shall not be sub- 
ject to any statutory limitation.— (i^.94). 

ARTICIiE II — VotTS 

1. Qualifications— Every (1) male (2) citizen (8) of the age of 21 130 
years, who shall have been (4) a citizen for 90 days, and (5) an in- (3) 
habitant of this state 1 year next preceding an election, and (6) 



634 NEW YORK CONSTITUTION i^oj-^j.^^ JJ 

for the last 4 months a resident of the county, and (T) for the last 
30 days a resident of the election district in which he may offer 
his vote, shall be entitled to vote at such election (8) in the election 
district of ^vhich he shall at the time be a resident, and not else- 
where, for all officers that now are or hereafter may be elective 
by the people, and upon all questions which may be submitted 
to the vote of the people; provided that in time of war no elector 
(132) in the actual military service of the state, or of the United States, 
in the arm}' or navy thereof, shall be deprived of his vote bj' rea- 
son of his absence from such election district; and the legislature 
shall have power to provide the manner in which and the time 
and place at which such absent electors may vote, and for the re- 
turn and canvass of their votes in the election districts In which 
they respectively reside. — (1846-94.) 

131 2. Bribery and betting — No person who shall receive, accept, or 
offer to receive, or pay, offer or promise to pay, contribute, offer 

(281 or promise to contribute to another, to be paid or used, any money 
to or other valuable thing as a compensation or reward for the giv- 

286) ing or withholding a vote at an election, or who shall make any 
promise to intluence the giving or withholding any such vote, or 
who shall make or become directly or indirectly interested in any 
bet or wager depending upon the result of any election, shall vote 
at such election; and upon challenge for such cause, the person 
so challenged, before the officers authorized for that purpose shall 
receive his vote, shall swear or affirm, before such officers, that 
he has not received or offered, does not expect to receive, has not 
paid, offered or promised to pay, contributed, offered or promised 
to contribute to another, to be paid or used, any money or other 
valuable thing as a compensation or reward for the giving or 
withholding a vote at such election, and has not made any prom- 
ise to influence the giving or withholding of any such vote, nor 
made or become directly or indirectl}* interested in any bet or 
wager depending upon the result of such election. The legisla- 
ture shall enact laws excluding from the right of suffrage all per- 
sons convicted of bribery or of any infamous crime. — {1846-94-) 

132 3. Residence — For the purpose of voting, no person shall be 
deemed to have gained or lost a residence, by reason of his 
presence or absence (1) while employed in the service of the 



Sec. 6]i3 5 VOTERS 635 

United States; nor (2) while engaged in the navigation of the 
waters of this state, or of the United States, or of the high seas; (130) 
nor (j3) while a student of any seminary of learning; nor (4) while 
kept at any alms-house or other asylum, or institution wholly 
or partly supported at public expense or by charity; nor (5) while 
confined in any public prison. — {I846-94.) 

4. Registration — Laws shall be made for ascertaining, by proper 133 
proofs, the citizens who shall be entitled to the right of suffrage 
hereby established, and for the registration of voters; which reg- 
istration shall be completed at least 10 days before each election. 
Such registration shall not be required for town and village elec- 
tions except b}' express provision of law. In cities and villages 
having 5,000 inhabitants or more, according to the last preceding 
state enumeration of inhabitants, voters shall be registered upon 
personal application only; but voters not residing in such cities 

or villages shall not be required to apply in person for registra- 
tion at the first meeting of the officers having charge of the reg- 
istry of voters.— (i^4^-54.) 

5. Election by ballot — All elections by the citizens, except for 134 
such town officers as may by law be directed to be otherwise 
chosen, shall be by ballot, or by such other method as may be pre- 
scribed by law, provided that secrecy in voting be preserved. — 
{1846-94.) 

6. Boards of registration — All laws creating, regulating or af- 135 
fecting boards or officers charged with the duty of registering 
voters, or of distributing ballots at the polls to voters, or of re- 
ceiving, recording or counting votes at elections, shall secure 
equal representation of the two political parties which, at the 
general election next preceding that for which such boards of offi- 
cers are to serve, cast the highest and the next highest number of 
votes. All such boards and officers shall be appointed or elected 

in such manner, and upon the nomination of such representatives 
of said parties respectively, as the legislature may direct. Exist- 
ing laws on this subject shall continue until the legislature shall 
otherwise provide. This section shall not apply to town meetings, 
or to village elections.— (i<?9^.) 



636 NEW YORK CONSTITUTION ^ ^ '^[Art. Ill 

ARTICLE III. — The Legislature 

136 1. Tiro h()iiHei< — The legislative power of this state shall be 
(2) vested in the senate and assembh'. 

137 2. Iloir: constituted — The senate shall consist of 50 members, 
(8) except as hereinafter provided. The senators elected in the year 
(141) 189o shall hold their offices for 3 years, and their successors 

shall be chosen for 2 years. The Assembly .shall consisr of l.-)0 
members who shall be chosen for 1 year. — {16'f>4.) 

138 3. S'iKffe difftrlct}< — The state shall be divided into ."jU districts 
(8) to be called senate districts, each of which shall choose 1 senator. 

The districts shall be numbered from 1 to 50, inclu.sive. — {1894.) 
[Tlic description of districts is omitted, as the districts are shown !a:raph- 
ic:illy upon the maps on pa^es 581.o70.1 

139 4. IIow altered — An euumemtion of the inhabitants of the state 
(8) shall be taken under the direction of the secretary of state, dur- 
ing the months of May and June, in the year 1905, and in the 
same months everj^ tenth year thereafter: and the said districts 
shall be so altered by the legislature at the tirst regidar session 
after the return of ever}' enumeration, that each senate distnct(l) 
shall contain as nearly as may be an equal niunber of inhabitants, 
excluding aliens, and (2) be in as compact form as jH-acticable, and 
(3) shall remain unaltered until the return of another enumeration, 
and (4) shall at all times consist of contiguous territory, and (5) 
no county shall be divided in the formation of a senate district 
except to make 2 or more senate districts Avholly in such county. 
No town, and no block in a city enclosed by streets or public 

♦ ways, shall be divided in the formation of senate districts: nor 
shall any district contain a greater excess in population over an 
adjoining district in the siime county, than the population of a 
town or block therein, adjoining such district. Counties, towns 
or blocks which, from their location, may be included in either of 
two districts, shall be so placed as to make Siiid districts most 
uearl}' equal in number of inhabitants, excluding aliens. "" 

140 No county shall have 4 or more senators unless it shall have a 
full ratio for each senator. No county shall have more than ^ 
of all the senatoi-s: and no 2 counties or the territory thereof as 
now organized, which are adjoining counties, or which are sep- 



Sec. 5]^^^ LEGISLATURE 637 

arated only by public waters, shall have more than i of all the 
senators. 

The ratio for apportioning senators shall always be obtained by 141 
dividing the number of inhabitants, excluding aliens, by 50, and (8) 
the senate shall always be composed of 50 members, except that 
if any county having 3 or more senators at the time of any appor- 
tionment shall be entitled on such ratio to an additional senator or 
senators, such additional senator or senators shall be given to such 
county in addition to the 50 senators, and the whole number of 
senators shall be increased to that extent.— (i^S^.) 

5. Assembly dit<t nets— The members of the assembly shall be 142 
cliosen by single districts, and shall be apportioned by the legis- 
lature at the first regular session after the return of every enum- (8) 
eration among the several counties of the state, as nearly as may (5) 
))(' according to the number of their respective inhabitants, ex- (100) 
eluding aliens. Every countj^ heretofore established and separ- 
ately organized, except the county of Hamilton, shall always be 
entitled to 1 member of assembly, and no county shall hereafter 
be erected unless its population shall entitle it to a member. The 
county of Hamilton shall elect with the county of Fulton, until 
the population of the county of Hamilton shall, according to the 
mtio, entitle it to a member. But the legislature may abolish the 
said county of Hamilton and annex the territory thereof to some 
other county or counties. 

The quotient obtained by dividing the whole number of inhab- 148 
itants of the state, excluding aliens, by the number of members (5) 
of assembly, shall be the ratio for apportionment, which shall be 
made as follows: 1 member of assembly shall be apportioned to 
every county, including Fulton and Hamilton as one county, con- 
taining less than the ratio and i over. 2 members shall be appor- 
tioned to every other county. The remaining members of assem- 
bly shall be apportioned to the counties having more than 2 ratios 
according to the number of inhabitants, excluding aliens. Mem- 
bers apportioned on remainders shall be apportioned to the coun- 
ties having the highest remainders in the order thereof respect- 
ively. No county shall have more members of assembly than a 
county having a greater number of inhabitants, excluding aliens. 

[The presf ut apportionment of members of assembly is given on page 
.580.] 



638 NEW YORK CONSTITUTION ^ ^^[Art. Ill 

144 In any county entitled to more than 1 member, the board of sup- 
ervisors, and in any city embracing an entire county and having 
no board of supervisors, the common council, or if there be none, 
the body exercising the powers of a common council, shall assem- 
ble on the second Tuesday of June, 1895, and at such times as the 
legislature making an apportionment shall prescribe, and divide 
such counties into assembly districts (1) as nearly equal in num- 
ber of inhabitants, excluding aliens, as may be, (2) of convenient 
and contiguous territory (3) in as compact form as practicable, (4) 
each of which shall be wholly within a senate district formed 
under the same apportionment, equal to the number of members 
of assembly to which ^uch coimty shall be entitled, and shall 
cause to be tiled in the office of the secretary of state and of the 
clerk of such county, a description of such districts, specifying 
the number of each district and of the inhabitants thereof, ex- 
cluding aliens, according to the last preceding enumeration; and 
such apportionment and districts (5) shall remain unaltered until 
another enumeration shall be made, as herein provided; but said 
division of the city of Brooklyn and the coimty of Kings to be 
made on the 2d Tuesday of Jime, 1895, shall be made by the com- 
mon council of the said city and the board of supervisors of said 
county, assembled in joint session. In counties having more than 
one senate district, the same number of assembly districts shall be 
put in each senate district, unless the assembly districts cannot be 
eveulj^ divided among the senate districts of any county, in which 
case one more assembly district shall be put in the senate district 
in such county having the largest, or one less assembly district 
shall be put in the senate district in such county having the 
smallest number of inhabitants, excluding aliens, as the case may 
require. Xo town, and no block in a city inclosed by streets or 
public ways, shall be divided in the formation of assembly dis- 
tricts, nor shall any district contain a greater excess in popidation 
over an adjoining district in the same senate district, than the 
population of a town or block therein adjoining such assembly 
district. Towns or blocks Avhicli, from their location, may be in- 
cluded in either of two districts, shall be so placed as to make 
said districts most nearly equal in number of inhabitants, exclud- 
ing aliens: but in the division of cities under the tirst apportion- 



Sec. 8]^^^ LEGISLATURE f)39 

meut, regard shall be had to the number of inhabitants, exclud- 
ing aliens, of the election districts according to the state enumer- 
ation of 1892, so far as may be, instead of blocks. Nothing in 
this section shall prevent the division, at any time, of counties and 
towns, and the erection of new towns b}^ the legislature. 

An apportionment by the legislature, or other bod)% shall be 145 
subject to review by the supreme court, at the suit of any citizen, 
inider such reasonable regulations as the legislature may pre- 
scribe ; and any court before which a cause may be pending involv- 
ing an apportionment, shall give precedence thereto over all other 
causes and proceedings, and if said court be not in session it shall 
convene promptly for the disposition of the same. — {1894.) 

6. Scdary of members — Each member of the legislature shall re- 146 
ceive for his services an annual salary of $1,500. The members (21) 
of either house shall also receive the sum of $1.00 for every 10 
miles they shall travel in going to and returning from their place 

of meeting, once in each session, on the most usual route. Sena- 
tors, when the senate alone is convened in extraordinarj^ session, 
or when serving as members of the court for the trial of impeach- 
ments, and such members of the assembly, not exceeding 9 in 
number, as shall be appointed manager^ of an impeachment, shall 
receive an additional allowance of $10 a day. 

7. Prohibitions — No member of the legislature shall receive 147 
any civil appointment within this state, or the senate of the United (21) 
States, from the governor, the governor and senate, or from the 
legislature, or [from any city government, during the time for 
which he shall have been elected; and all such appointments and (215) 
all votes given for any such member for any such office or ap- 
pointment shall be void. 

8. JOisqicaliJications— No person shall be eligible to the legisla- 148 
ture, who at the time of his election, is, or within 100 days previ- 
ous thereto has been^ (1) a member of congress, (2) a civil or mill- (22) 
tary officer under the United States, or (3) an officer under any city (10) 
o-overnment. And if any person shall, after his election as a 
member of the legislature, be elected to congress, or appointed to 

any office, civil or military, under the government of the United 



640 NEW YORK CONSTITUTION ^^^[Art. Ill 

States, or under any city government, liis acceptance tbereof shall 
vacate his seat. 

149 9. Election — The elections of senators and members of assem- 
(15) bly, pursuant to the provisions of this constitution, shall be held 
(279) on the Tuesday succeeding the 1st ]SIonday of November, unless 

oth^wise directed by the legislature. 

150 10. Rtdes of the house — A majority of each house shall consti- 
(17) tute a quorum to do business. Each house shall determine the 

(17) rules of its own proceedings, and be the judge of the elections, 
returns and qualitications of its own members; and shall choose 

(12) its own officers; and the senate shall choose a temporary presi- 
dent to preside in case of the absence or impeachment of the 
lieutenant-governor, or when he shall refuse to act as president, 
or shall act as governor. 

151 11. Jonrn<(h — Each house shall keep a journal of its proceed- 

(18) ings, and publish the same, except such parts as may require 
secrecy. The doors of each house shall be kept open, except 

(20) when the public welfare shall require secrecy. Neither house 
shall, jtvithout the consent of the other, adjourn for more than 2 
days. 

152 12. Pricilege — For any speech or debate in either house of the 

(21) legislature, the members shall not be questioned in any other 
place. 

15o 13. Bilh — Any bill may originate in either house of the legisla- 
(23) ture, and all bills passed by one house may be amended by the 
other. 

154 14; Enacting clause — The enacting clause of all bills shall be 
(25) " The people of the state of New York, represented in senate and 

assembh', do enact as follows." and no law shall be enacted ex- 
cept by bill. 

155 15. Deliberate hgidation — No bill shall be passed or become a 
law unless it shall havt- been printed and upon the desks of the 
members, in its final form, at least 3 calendar legislative days prior 
to its final passage, unless the governor, or the acting governor, 
shall have certified to the necessity of its immediate passage, un- 
der his hand and the seal of the state; nor shall any bill be 
passed or become a law. except by the assent of a majority of 
the members elected to each branch of the legislature; and upon 



Sec. 18)i<'^* LEGISLATURE 



641 



tlie last reading of a bill, no amendment thereof shall be allowed, 
and the question upon its final passage shall be taken immedi- (238) 
ately thereafter, and the yeas and navs entered on the journal. 
— (1846-94.) 

16. Private hilh—^o private or local bill, which may be lo(> 
passed by the legislature, shall embrace more than one subject, 

and that shall be expressed in the title. 

17. Ill eluded laws iiiserted^^So act shall be passed which shall 157 
provide that any existing law, or any part thereof, shall be made (174) 
or deemed a part of said act, or which shall enact that any exist- (177) 
ing law, or part thereof, shall be applicable, except by inserting 

it in such act. 

18. Farther restnctioas — The legislature shall not pass a pri- 
vate or local bill in any of the following cases: 

(1) changing the names of persons; 158 

(2) laying out, opening, altering, working or discontinuing 159 
roads, highA\ays or alleys, or for draining swamps or other low 
lands; 

(8) locating or changing county seats; 160 

(4) providing for changes of venu in civil or criminal cases; 161 

(5) incorporating villages; 163 

(6) providing for election of members of boards of super- 168 
visors; 

(7) selecting, drawing, summoning or impanelling grand or 164 
petit jurors; 164 

(8) regulating the rate of interest on money ; 165 

(9) the opening and conducting of elections or designating 166 
places of voting; (3) 

(10) creating, increasing or decreasing fees, percentages or al- 167 
lowances of public officers, during the term for which said offi- (59) 
cers are elected or appointed; (66) 

(11) granting to any corporation, association or individual the 168 
right to lay down railroad tracks; 

(12) granting to any private corporation, association or indi- 169 
vidual any exclusive privilege, immunity or franchise whatever; 

(18) granting to anj^ person, association, firm or corporation an 169 a 
exemption from taxation on real or personal property {adopted 
1901); 



642 



NEW YORK CONSTITUTION 



]Art. Ill 



170 



171 

(118) 



(204) 



172 

(49) 



173 

(23) 



174 

<49) 



(157) 

(177) 

175 



(14) providing for building bridges, and chartering companies 
for such purposes, except on the Hudson river below Waterford, 
and on the East river, or over the waters forming a part of the 
boundaries of the state. 

The legislature shall pass general laws providing for the cases 
enumerated in this section, and for all other cases which in its 
judgment may be provided for by general laws. But no law 
shall authorize the construction or operation of a street railroad 
except upon the condition that the consent of the owners of ^ in 
value of the property bounded on, and the consent also of the 
local authorities having the control of, that portion of a street or 
highway upon which it is proposed to construct or operate such 
railroad be first obtained, or in case the consent of such property 
owners cannot be obtained, the appellate division of the supreme 
court, in the department in which it is proposed to be constructed, 
may, upon application, appoint 3 conunissioners who shall deter- 
mine, after a hearing of all parties interested, whether such rail- 
road ought to be constructed or operated, and their determina- 
tion, confirmed by the court, maj- be taken in lieu of the consent 
of the property owners. — {IS^d-lOOl.) 

19. Pricdtc chiiiii.H — Tiie legislature shall neither audit nor allow 
any private claim or account against the state, but may appro- 
priate money to pay such claims as shall have been audited and 
allowed according to law. 

20. Two-thirds rote — The assent of ^ of the members elected to 
each branch of the legislature shall be requisite to every bill ap- 
projiriating the public moneys or property for local or private 
purposes. 

21. Ajyprojyrutfio/i hills — Xo money shall ever be paid out of the 
treasuiy of this state, or any of its funds, or any of the funds 
under its management, except (1) in pursuance of an appropria- 
tion by law; nor (2) unless such payment be made within 2 years 
next after the passage of such appropriation act; and every such 
lawmaking a new appropriation, or continuing or reviving an 
appropriation, shall distinctly specify (3) the sum appropriated, 
and (4) the object to which it is to be applied; and it shall not be 
sufficient for such law to refer to any other law to fix such sum. 

22. Extraneous pronsions — Xo provision or enactment shall 



Sec. 29] "^ - LEGISLATURE 648 

be embraced in the annual ai3propriation or supply bill, un- 
less it relates specifically to some particular appropriation in the 
bill; and any such provision or enactment shall be limited in its 
operation to such appropriation. — {1894.) 

23. Rensed statutes — Sections 17 and 18 of this article shall not 176 
apply to an}^ bill, or the amendments to any bill, which shall be 
reported to the legislature by commissioners who have been ap- 
pointed pursuant to law to revise the statutes. 

24. Tax bills — Every law which imposes, continues or revives 177 
a tax shall distinctly state the tax and the object to which it is to (23) 
l)e applied, and it shall not be sufficient to refer to an}^ other (157) 
law to fix such tax or object. (174) 

25. On the final passage, in either house of the legislature, of 178 
any act which imposes, cbntinues or revives a tax, or creates a (23) 
debt or charge, or makes, continues or revives any appropriation 

of public or trust money or property, or releases, discharges or 
commutes any claim or demand of the state, the question shall be (19) 
taken by yeas and nays, which shall be duly entered upon the 
journals, and'f of all the members elected to either house shall, in 
all such cases, be necessary to constitute a quorum therein. 

26. Siqyervisors— There shall be in each county, except in a 179 
county wholly included in a city, a board of supervisors, to be 
composed of such members, and elected in such manner, and for 
such period, as is or may be provided by law. In a city which 
includes an entire county, or 2 or more entire counties, the powers 

and duties of a board of supervisors may be devolved upon the 
municipal assembl}^ common council, board of aldermen or other 
legislative body of the city. — {1894.) 

27. Local legislation— The legislature shall, by general laws, 180 
confer upon the boards of supervisors of the several counties of 

the state such further powers of local legislation and administra- 
tion as the legislature may from time to time deem expedient. 

28. Extra compensation— The legislature shall not, nor shall the 181 
common council of any city, nor any board of supervisors, grant (59) 
any extra compensa^tion to any public officer, servant, agent or (66) 
contractor. 

29. Prison-labor— The legislature shall, by law, provide for the 1 
occupation and employment of prisoners seiitenced to the several 



644 NEW YORK CONSTITUTION ^'^'[Art. lY 

state prisons, penitentiari<?s, jails and reformatories of the state; 
and on and after the 1st day of Januarj^ in the year 1897, no per- 
son in an}' such prison, penitentiary, jail or refonuatory, shall be 
' required or allowed to work, AVhile under sentence thereto, at any 
trade, industry or occupation, wherein or whereby his work, 
or the product or profit of his work, shall be farmed out, con- 
tracted, given or sold to an}- person, firm, association or corpora- 
tion. This section shall not be construed to prevent the legisla 
ture from providing that convicts may work for, and that the 
products of their labor may be disposed of to, the state or any 
political division thereof, or for or to any public institution 
owned or managed and controlled by the state, or an}' political 
di vision thereof. — ( 189^ . ) 

ARTICLE IV— Executive depart iiient 

183 1. Officers — The executive power shall be vested in a governor. 
(53) who shall hold his office for 2 years; a lieutenant-governor 

shall be chosen at the same time, and for the same term. The 
governor and liettenant-governor elected next preceding the time 
when this section ^hall take effect, shall hold office until and in- 
cluding the 31st day of December, 1896, and their successors 
shall be chosen at the general election in that year. — (1846-94.) 

184 2. Eliglhility — No person shall be eligible to the office of gov- 
(57) ernor or lieutenant-governor, except (1) a citizen of the United 
(97) States, (2) of the age of not less than 30 years, and (3) who shall 

have been 5 years next preceding his election a resident of this 
state. 

185 3. Election — The governor and lieutenant-governor shall be 
elected at the times and places of choosing members of the assem- 
bl}'. The persons respectively having the highest number of 

(95) votes for governor and lieutenant-governor shall be elected; but 
in case 2 or more shall have an equal and the highest number of 
votes for governor, or for lieutenant-governor, the two houses of 
the legislature at its next annual session shall forthwith, by joint 
ballot, choose one of the said persons so having an equal and the 
highest number of votes for governor or lieutenant-governor. 

186 4. Duties of tlie governor — The governor (1) shall be command- 
er-in-chief of the military and naval forces of the state. He (2 



Sec. 6] 1 ^ ^ GOVERNOR 645 

shall have power to convene the legislature, or the senate only, (64) 
on extraordinary occasions. At extraordinary sessions no subject 
shall he acted upon, except such as the governor may recommend 
for consideration. He (3) shall communicate by message to the 
legislature at every session the condition of the state, and (4) rec- 
ommend such matters to it as he shall judge expedient. He (5) (61) 
shall transact all necessary business witli the othcers of the gov- 
eernmeut, civil and military. He (6) shall expedite all such meas- 
ures as may be resolved upon by the legislature, and (7) shall take 
care that the laws are faithfully executed. He shall receive for (59) 
his services an annual salary of $10,000, and there shall be provi- 
ded for his use a suitable and furnished executive residence. 

5. Pardons — The governor shall have the power to grant re- 187 
prie ves, commutations and pardons af tej conviction, for all offences (61) 
except treason and cases of impeachment, upon such conditions 

and with such restrictions and limitations, as he may think pi-oper, 
subject to such re^'ulations as may be provided by law relative to 
the manner of applying for pardons. Upon conviction for treas- 
on, he shall have power to suspend the execution of the sentence, 
until the case shall be reported to the legislature at its next meet- x 
ing, when the legislature shall either pardon, or commute the sen- 
tence, direct the execution of the sentence, or grant a further re- 
prieve. He shall annually communicate to the legislature each 
case of reprieve, commutation or pardon granted, stating the 
name of the convict, the crime of which he was convicted, the 
sentence and its date, and the date of the commutation, pardon 
or reprieve. 

6. Power may dewlce upon the lieatenartt-governor — In case of the 188 
impeachment of the governor, or his removal from office, death, (58) 
inability to discharge the powers and duties of the said office, res- 
ignation, or absence from the state, the powers and tluties of the 
office shall devolve upon the lieutenant-governor for the residue 

of the term, or until the disability shall cease. But when the gov- 
ernor shall, with the consent of the legislature, be out of the state, 
in time of war, at the head of a military force thereof, he shall (186) 
continue commander-in-chief of all the military force of the 
State. 



646 NEW YORK CONSTITUTION ^ ''^[Art. IV 

189 7. Duties of Uevtenfuit-goeernor — The lieutenant-^ovornor shall 
(97) possess the same qualifications of eligibilit}' for office as the gov- 
ernor. He shall be president of the Senate, but shall have only 

' a casting vote therein. If during a vacancy of the office of gov- 
<58) ernor, the lieutenant-governor shall be impeached, displaced, re- 
sign, die, or become incapable of performing the duties of his 
office, or be absent from the state, the president of the senate 
shall act as governor until the vacancy be filled or the disability 
shall cease; and if the president of the senate for any of the 
above causes shall become incapable of performing the duties 
pertaining to the office of governor, the speaker of the assembly 
shall act as governor until the vacancy be rilled or the disability 
shall cease.— (/<540-54.) 

190 8. Sidary — The lieutenant-governor shall receive for his serv- 
(59) ices an annual salary of $5,000, and shall not receive or be en- 
(66) titled to any other compensation, fee or perquisite, for any duty 
(226) or service he may be recpiired to perform by the constitution or 
(228) bylaw. 

191 9. The veto — Every bill which shall have pas.sed the senate and 

(24) / assembly shall, before it becomes a law, be presented to the gov- 

(25) ernor; if he approve, he shall sign it; but if not, (1) he shall re- 
(276) turn it with his objections to the house in which it shall have orig- 
inated, (2) which shall enter the objections at large on the journal, 
and proceed to reconsider it. (8) If after such reconsideration, | 
of the members elected to that house shall agree to pass the bill, 
it shall be sent together ^\ith the objections to the other house, by 
which it shall likewise be reconsidered; and (4) if approved by f of 
the members,elected to that house, it shall become a law notwith- 
standing the objections of the governor. In all such cases, the 
votes in both houses shall be determined by yeas and nays, and 
the names of the members voting shall be entered on the journal 
of each house respectively. (5) If any bill shall not be returned 
hj the governor within 10 days (Sundays excepted) after it shall 
have been presented to him, the same shall be a law, in like man- 
ner as if he had signed it, unless the legislature shall, by their 
adjournment, prevent its return, in which case it shall not Ix^come 
a law without the approval of the governor. No bill shall l>ecome 
a law after the final adjournment of the legislature, unless ap- 



Art. yy-^'^ STATE EXECUTIVE OFFICERS G47 

proved by the governor within 30 days after such adjournment. 
(6.) If any bill presented to the governor contain several items of 
appropriation of money, he may object to one or more of such 
items while approving of the other portion of the bill. In such 
case, he shall append to the bill, at the time of signing it, a state- 
ment of the items to which he objects; and the appropriation so 
objected to shall not take effect. If the legislature be in session, 
he shall transmit to the house in which the bill originated a copj^ 
of such statement, and the items objected to shall be separately 
reconsidered. If on reconsideration one or more of such items be 
approved by f of the members elected to each house, the same 
shall be part of the law, notwithstanding the objections of the 
governor. All the provisions of this section, in relation to bills 
not approved by the governor, shall apply in cases in which he 
shall withhold his approval from any item or items contained in 
a bill appropriating money. 

ARTICLE V — Other state officers 

1. Mection— The secretary of state, comptroller, treasurer, at- 192 
torney-general and state engineer and surveyor shall be chosen at (61) 
a general election, at the times and places of electing the gov- (62) 
ernor and lieutenant-governor, and shall hold their offices for 2 
years, except as provided in section 2 of this article. Each of 

the officers in this article named, excepting the speaker of the as- (196) 
sembly, shall at stated times during his continuance in office re- 
cei\e for his services a compensation which shall not be increased 
or diminished during the term for which he shall have been (59) 
elected; nor shall he receive to his use any fees or perquisites of (66) 
office or other compensation. No person shall be elected to the (190) 
office of state engineer and survevor who is not a practical civil (226) 
engineer. ^-w^uy 

2. The tirst election of the secretary of state, comptroller, 193 
treasurer, attorney-general and state engineer and surveyor, pur- 
suant to this articfe shall be held in the year 1895, and their 
terms of office shall begin on the 1st day of January following, 
and shall be for 3 years. At the general election in the year 1898, 
/and every 2 years thereafter, their successors shall ho chosen 

for the term of 2 xearH.—{l894 ) 



648 NEW YORK CONSTITUTION ^ '^ ^[Art. V 

194 3. Siii/t of public icorks — The superintendent of public works 
shall be appointed by the governor, by and with the advice and 
consent of the senate, and hold his office until the end of the 
term of the governor by whom he was nominated, and until his 
successor is appointed and qualified. He shall receive a com- 
pensation to be fixed b}' law. He shall be required by laAv to 
give security for the faithful execution of his office before enter- 
ing upon the duties thereof. He shall be charged with the exe- 
cution of all laws relating to the repair and navigation of the 
canals, and also of those relating to the construction and improve- 
ment of the' canals, except so far as the execution of the 
laws relating to such construction or improvement shall be 
{;onfided to the state engineer and surveyor ; subject to the 
control of the legislature, he shall make the rules and regula- 
tions for the navigation or use of the canals. He may be sus- 
pended or removed from office by the governor, whenever, in 
his judgment, the public interest shall .so require; but in case of 
the removal of such superintendent of public works from office, 
the governor shall file with the .secretary of state a statement of 
the cause of such removal, and shall report such removal and the 
cause thereof to the legislature at its next session. The superin- 
tendent of public works shall appoint not more than 8 assistant 
superintendents, whose duties shall be prescibed by him, subject 
to modification by the legislature, and who shall recive for their 
services a compensation to be fixed by law. They shall hold 
their office for 8 years, subject to susi)ension or removal by the 
superintendent of public works, whenever, in his judgment, the 
public interest shall so require. Any vacancy in the office of any 
such assistant superintendent shall be filled for the remainder of 
of the term for which he was appointed by the superintendent of 
public works; but in case of the suspension or removal of iftiy 
(289) such assistant superintendent, by him, he shall at once report to 
the governor, in writing, the cause of such removal. All other 
persons employed in the care and management of the canals, ex- 
cept collectors of tolls, and those in the department of the state 
engineer and surveyor, shall be appointed by the superintendent 
of public works and be subject to suspension or removal by him. 
The superintendent of public works shall perform all the duties 



Sec. 7]^^^ STATE EXECUTIVE OFFICERS 649 

of the former canal commissioners, and board of canal com mis- (UHi) 
sioners, as now declared by law, until otherwise provided by the 
legislature. The governor, by and with the advice and consent 
of the senate, shall have power to fill vacancies in the office of 
superintendent of public works ; if the senate be not in session, 
he may grant commissions which shall expire at the end of the 
next succeeding session of the senate. 

4. Sup' t of state prisons — A superintent of state prisons shall 19.") 
be appointed by the governor, by and with the advice and con- 
sent of the senate, and hold his office for 5 years, unless sooner 
removed ; he shall give security in such amount, and with such 
sureties as shall be required \)j law for the faithful discharge of 

his duties ; he shall have the superintendence, management and 
control of state prisons, subject to such laws as now exist or may 
hereafter be enacted ; he shall appoint the agents, wardens, phy- 
sicians and chaplains of the prisons. The agent and warden of 
each prison shall appoint all other officers of such prison, except 
the clerk, subject to the approval of the same by the superinten- 
dent. The comptroller shall appoint the clerks of the prisons. 
The superintendent shall have all the powers and perform all the 
duties not inconsistent herewith, which were formerly had and 
performed by the inspectors of state prisons. The governor 
may remove the superintendent for cause at any time, giving to 
him a copy of the charges against him, and an opportunity to be 
heard in his defence. — {1846-94-) 

5. Kv-officM boards.— The liutenant-governor, speaker of the 19(5 
assembly, secretaj-y of state, comptroller, treasurer, attorney- 
general and state engineer and surveyor shall be the commission- 
ers of the land office. The lieutenant-governor, secretary of 
state, comptroller, treasurer and attorney-general shall be the 
commissioners of the canal fund. The canal board shall consist (194 
of the commissioners of the canal fund, the state engineer and (236) 
surveyor and the superintendent of public works. — (1846-94.) 

6. The powers and duties of the respective boards, and of the 197 
several officers in this article mentioned, shall be such as now are 

or hereafter may be prescribed by law.* 

7. Tremurer may he suspended— The treasurer may be sus- 198 

•For table of ex-officio boards see page 210. 



650 NEW YORK CONSTITUTION ^ ^ ^[Art. V 

pended from office by the governor, during the recess of the leg- 
(260) islature, and until 80 days after the commencement of the next 
(266) of the session legislature, whenever it shall appear to him that 
such treasurer has, in anj^ particular, violated his duty. The 
governor shall appoint a competent person to discharge the duties 
of the office during such suspension of the treasurer. 

199 8 Certain offices cdjolisJied — All offices for the Aveighing. 
gauging, measuring, culling or inspecting any merchandise, 
produce, manufacture or commodit)^ whatever, are hereby abol- 
ished ; and no such office shall hereafter be created by law ; but 
nothing in this section contained shall abrogate any office created 
for the purpose of protecting the public health or the interests 
of the state in its property, revenue, tolls or purchases, or of 
supplying the people Avith correct standards of weights and 
measures, or shall prevent the creation of any such office for 
such purposes hereafter. 

200 9. Civil .wnce e.va mi nations — Appointments and promotions in 
the civil service of the state, and of all the civil divisions thereof, 
including cities and villages, shall be made according to merit 
and fitness to be ascertained, so far as practicable, by examina- 
tions which, so far as practicable, shall be competitive; provided, 
however, that honorably discharged soldiers and sailors from the 
arm}' and navy of the United States in the late civil war, who are 
citizens and residents of this state, shall be entitled to preference 
in appointment and promotion, without regard to their standing 
on any list from which such appointment or promotion may be 
made. Laws shall be made to provide for the enforcement of 
this section.— (i<?<5"4.) 

ARTICLE VI.— Judiciary 

201 1. Supreme court — The supreme court is continued with general 
(66) jurisdiction in law and equity, subject to such appellate jurisdic- 
tion of the court of appeals as now is or may be prescribed by 
law not inconsistent with this article. The existing judicial dis- 
tricts of the state are continued until changed as hereinafter pro- 
vided.* The supreme court shall consist of the justices now in 

)208) office, and of the judges transferred thereto by the 5th section of 

See map. page 568. 



Art. VI]2 4 STATE JUDICIARY (J.")! 

this article, all of whom shall continue to be justices of the 
supreme court during their respective terms, and of 12 additional 
justices who shall reside in and be chosen by the electors of, the 
several existing judicial districts, 3 in the first district, 3 in the 
second, and 1 in each of the other districts; and of their success- 
sors. The successors of said justices shall be chosen by the 
electors, of their respective judicial districts. The legislature 
may alter the judicial districts once after every enumeration 
under the constitution, of the inhabitants of the state, and there- 
upon reapportion the justices to be thereafter elected in the dis- 
tricts so filtered.— (1846-94.) 

2. Judicial departments — The legislature shall divide the state 203 
into 4 judicial departments. The 1st department shall consist of 
the count)^ of New' York; the others shall be bounded by county 
lines, and be compact and equal in population as nearly as may 
be. Once every 10 years the legislature may alter the judicial 
departments, but without increasing the number thereof. 

There shall be an appellate division of the supreme court, 203 
consisting of 7 justices in the first department, and of 5 j us- 
ees in each of the other departments. In each department 4 shall 
constitute a quorum, and the concurrence of 3 shall be necesstiry 
to a decision. No more than 5 justices shall sit in any case. 

From all the justices elected to the supreme court, the 204 
governor shall designate those who shall constitute the appellate 
division in each (department; and he shall designate the presiding 
justice thereof, w^ho shall act as such during his term of office, 
and shall be a resident of the department. The other justices 
shall be designated for terms of 5 years, or the unexpired por- 
tions of their respective terms of office, if less than 5 years. From 
that time as the terms of such designations expire, or vacan- 
cies occur, he shall make uew^ designations. A majority of the 
justices designated to sit in the appellate division in each depart- 
ment shall be residents of the department. He may also make 
temporary designations in case of the absence or inability to act, 
of any justice of the appellate division, or in case the presiding 
justice of any appellate division shall certify to him that one or 
more additional justices are needed for the speedy disposition of 
the business before it. Whenever the appellate division in any 
department shall be unable to dispose of its business within a 



654 NEW YORK CONSTITUTION '^^^[Avt. VI 

judges shall be 14 years from and including the 1st day of Janu- 
uary next after their election. 5 members of the court shall form 
a quorum, and the concurrence of 4 shall be necessary to a decis- 
ion. The court shall have power to appoint and to remove its re- 
porter, clerk and attendants. Whenever and as often as a ma- 
jority of the judges of the court of appeals shall certify to the 
governor that said court is unable by reason of the accumulation 
of causes pending therein, to hear and dispose of the same with 
reasonable speed, the governor shall designate not more than 4 
justices of the supreme court to serve as associate judges of court 
of appeals. The justices so designated shall be relieved from 
their duties as justices of the supreme court and shall serve as as- 
sociate judges of the court of appeals until the causes undisposed 
of in said court are reduced to 200, when they shall return to the 
supreme court. The governor may designate justices of the su- 
preme court to fill vacancies. No justice shall serve as associate 
judge of the court of appeals except while holding the office of 
justice of the supreme court, and no more than 7 judges shall sit 
in any case. — (1846-94, as cunetided in 1899). 

211 8. Filling of vacancies — When a vacancy shall occur otherwise 
than by expiration of term, in the office of chief or associate judge 
of the court of appeals, the same shall be filled, for a full term, 
at the next general election happening not less than 3 months after 

(62) such vacancy occurs; and until the vacancy shall be so tilled, the 

(63) governor, by and with the advice and consent of the senate, if the 
senate shall be in session, or if not in session the governor may 
fill sucli vacancy by appointment. If any such appointment of 
chief judge shall be made from among the associate judges, a 
temporary appointment of associate judge shall be made in like 
manner; but in such case, the person appointed chief judge shall 
not be deemed to vacate his office of associate judge any longer 
than until the expiration of his appointment as chief judge. The 
powers and jurisdiction of the court shall not be suspended for 
want of appointment or election, when the number of judges is 
sufficient to constitute a quorum. All appointments under this 
section shall continue until and including the last day of December 
next after election at which the vacancv shall be filled. 



Sec. 11]^ 1^' STATE JUDICIARY ()."):) 

9. Jurigdicfiott—AfUn-thoVdstdny of Dcccnilu'r. ISO."), tlic jiir- 212 
isdictioii of the court of appeals, except wliere the jiulirincnt is of (67) 
death, shall be limited to the review of (luestions of law. No unaii- (OW) 
imoiis decision of the appellate division of the supreme court that 
there is evidence supporting or tending to sustain a tiiidiiig of 

fact or a verdict not directed by the court, shall be reviewed by 
the court of appeals. Except where the judgment is of death, 
appeals may be taken, as of right, to siiid court only from judg- 
ments or orders entered upon decisions of the appellate division (204) 
of the supreme court, finally determining actions or special pro- 
ceedings, and from orders granting new trials on exceptions, 
where the appellants stipulate that upon affirmance judgment 
absolute shall be rendered against them. The appellate division 
in any department, may however, allow an appeal upon any ques- 
tion of law" which, in its opinion, ought to be reviewed by the 
court of appeals. 

The legislature may further restrict the jurisdiction of the court 213 
of appeals and the right of appeal thereto, but the right to ap- (67) 
peal shall not depend upon the amount involved. 

The provisions of this section shall not apply to orders made or 214 
judgments rendered by any general term before the last day of 
December, 1895, but appeals therefrom ma}" be taken under exist- (204) 
ing provisions of law. — {1894). 

10. Proldhitions — The judges of the court of appeals and the 215 
justices of the supreme court shall not hold any otlier office or 
public trust. All votes for any of them, for any other than a (147) 
judicial office, given by the legislature or the people shall be 
void. 

11. Remoml — Judges of the court of appeals and justices of 216 
the. supreme court may be removed by concurrent resolution of 
both houses of the legislature, if t o*' all the members elected to (65) 
each house concur therein. All other judicial officers, except 
justices of the peace and judges or justices of inferior courts 

not of record, may be removed by the senate, on the recommen- 
dation of the governor, if f of all the members elected to the 
senate concur therein. But no officer shall be removed by vir- 
tue of this section except- for cause, which shall be entered on 



6-56 NEW YORK CONSTITUTION - ^ ^[Art. VI 

the jouinals, nor unless he shall have been served with a state- 
ment of the cause alleged, and shall have had an opportunity to 
be heard. On the question of removal, the yeas and nays shall 
be entered on the journal — {I846-94.) 

217 12. Salaries — The judges and justices hereinbefore men- 
(66) tioned shall receive for their services a compensation estab- 
lished by law, which shall not be increased or diminished during 

(221) their official terms, except as provided in section 5 of this arti- 
cle. No person shall hold the office of judge or justice of anj^ 
court longer than until and including the last day of December 
next after he shall be 70 years of age. Xo judge or justice 
elected after the 1st day of January, 1894, shall be entitled to 
receive any compensation after the last day of December next 
after he shall be 70 years of age ; but the compensation of every 
judge of the court of appeals or justice of the supreme court 
elected prior to the first da}^ of January, 1894, whose term of of- 
fice has been, or whose present term of office shall be, so abridged, 
and who shall have served as such judge or justice 10 years or 
more, shall be continued during the remainder of the term for 
which he was elected-; but any such judge or justice m-dy, with 
his consent, be assigned by the governor, from time to time, to 
any duty in the supreme court while his compensation is so 
continued.— (I846-94. ) 

218 13. Impeachment — The assembly shall have the power of im- 
(65) peachment, by a vote of a majority of all the members elected. 

The court for the trial of impeachments shall be composed of the 
(13) president of the senate, the senators, or the major part of them, 
and the judges of the court of appeals, or the major part of them. 
On the trial of an impeachment against the governor or lieuten- 
(61) ant-governor, the lieutenant-governor shall not act as a member of 
the court. No judicial officer shall exercise his office, after arti- 
cles of impeachment against him shall have been preferred to 
the senate, until he shall have been acquitted. Before the trial of 
an impeachment the members of the court shall take an oath or 
affirmation truly and impartially to try the impeachment accord- 
ing to the evidence, and no person shall be convicted without the 
concurrence of f of the members present. Judgment in cases 



Sec. 15]2 2i STATE JUDICIARY fif)? 

of impeachment shall not extend further tlian to removal from (14) 
office, or removal from office and disqualitication to hold and en- (187) 
joy any office of honor, trust or profit under this state ; but the 
party impeached shall be liable to indictment and inmishnjent 
acording to law. — {1846-94.) 

14. County courts — The existing- county courts are continued, 219 
and the judges thereof now in office shall hold their offices until 

the expiration of their respective terms. In the county of Kings 
there shall be 2 county judges, and the additional county judge 
shall be chosen at the next general election held after theadoi)ti()n 
of this article. The successors of the several county judges 
shall be chosen by the electors of the counties for the term of 6 years 
Count}^ courts shall have the powers and jurisdiction they now 
possess, and also original jurisdiction in actions for the recovery 
of money only, where the defendants reside in the count}', and 
in Avhich the complaint demands judgment for a sum not exceed- 
ing $2,000. The legislature ma}^ hereafter enlarge or restrict the 
jurisdiction of the county courts, provided, however, that their 
jurisdiction shall not be so extended as to authorize an action 
therein for the of money only, in which the sum demanded ex- 
ceeds $2,000, or in which any person not a resident of the (89) 
county is a defendant. 

Ceurts of sessions, except in the count}' of New York, are 220 
abolished fromWd after the last day of December, 1895. All (229) 
the jurisdiction of the court of sessions in each county, except 
the county of New Y^ork, shall thereupon be vested in the county 
court thereof, and all actions and proceedings then pending in 
such courts of sessions shall be transferred to said county 
courts for hearing and determination. Every county judge shall 
perform such duties as ma}^ be required by law. His salary 
shall be established by law, payable out of the county treasury. 
A county judge of any county may hold county courts in any 
other county when requested by the judge of such other county. 
{1846-9 4.) 

15. Surrogates covrts — The existing surrogates coin-ts are con- 221 
tinued. and the surrogates now in office shall hold their offices 
until the expiration of their terms. Their successors shall be 
chosen by the electors of their respective counties, and their 



658 NEW YORK CONSTITUTION ^ 2 i |-^j.t. VI 

terms of office shall be 6 years, except iu the county of New 
York, where they shall continue to be 14 years. Surrogates and 
surrogates courts shall have the jurisdiction and powers which 
the surrogates and existing surrogates courts now possess, until 
otherwise provided by the legislature. The county judge shall 
be surrogate of his county, except where a separate surrogate has 
been or shall be elected. In counties having a population ex- 
ceeding 40,000, wherein there is no separate surrogate, the legis- 
lature may provide for the election of a separate officer to be sur- 
rogate, whose term of office shall be 6 years. AVhen the surro- 
gate shall be elected as a separate officer his salary- shall be estab- 
lished by law, payable out of the county treasury. Xo county 
judge or surrogate shall hold office longer than until and includ- 
(217) ing the last day of December next after he shall be TO years of 
age. Vacancies occurring in the office of county judge or surro- 
(59) gate shall be filled in the same manner as like vacancies occurring 
(66) in the supreme court. The compensation of any county judge or 
(190) surrogate shall not be increased or diminished during his term of 
(221) office. For the relief of surrogates courts the legislature may 
(226) confer upon the supreme court in any county having a popula- 
(268) tion exceeeding 400,000, the powers and jurisdiction of surro- 
gates, with authority to try issues of fact b}' jur}' in probate 
cases.— (1846-94.) 

222 16. Vacancies — The legislature may, on application of the board 
of supervisors, provide for the election of local officers, not to ex- 
ceed 2 in any county, to discharge the duties of county judge and 
of surrogate, in cases of their inability, or of a vacancy, and in 
such other cases as may be provided by law, and to exercise such 
other powers in special cases as are or maybe provided bylaw. — 
(1846-94.) 

223 17. Justices of the peace — The electors of the several towns 
shall, at their annual town meetings, or at such other time and in 
such manner as the legislature maj^ direct, elect justices of the 
peace, whose term of office shall be 4 years. In case of an elec- 
tion to fill a vacancy occurring before the expiration of a full 
term, they shall hold for the residue of the unexpired term. 
Their number and classification may be regulated by laAv. Justi- 
ces of the peace and judges or justices of inferior courts not of 



Sec. 2()]2 2 STATE JUDICIARY (ioll 

record, and their clerks, may be removed for cause, after due 
notice and an opportunity of being heard, by such courts as are 
or may be prescribed by law. Justices of the peace and distric-t 
court justices may be elected in the different cities of this state 
in such manner, and with such i)owers. and for such terms, 
respectively, as are or shall be prescribed by law; all otiier judi- 
cial officers in Cities, whose election or appointment is not other- 
wise provided for in this article, shall be chosen by the electors 
of such cities, or appointed by some local authorities thereof.— 

{IS 46-94.) 

18. Local courts — Inferi(n- local courts of civil and criminal *224 
jurisdiction may be established by the legislature, but no inferior 
local court hereafter created shall be a court of record. The leg- 
islature shall not hereafter confer upon any inferior or local court 

of its creation, any equity jurisdiction or any greater jurisdiction 
in other respects than is conferred upon county courts by or 
under this article. Except as herein otherwise provided, all judi- (219) 
cial officers shall be elected or appointed at such times and in 
such manner as the legislature may direct. — {IS4G-U4.) 

19. Clerks — Clerks of the several counties shall be clerks of ^^o 
the supreme court, with such pow'ers and duties as shall be pre- 
scribed by ]aw\ The justices of the appellate division in each 
department shall have power to appoint and to remove a clerk 
who shall keep \iis office at a place to be designated by sjud jus- 
tices. The clerk of the court of appeals shall keep his office at 

the seat of government. The clerk of the court of appeals and 
the clerks of the appellate division shall receive compensiition to 
be established by law and paid out of the public treasury. — 
(1846-94) 

20. Compensation — No judicial officer, excei)t justices of the 22<i 
peace, shall receive to his own use any fees or perquisites of office; (59) 
nor shall any judge of the court of apiK'als, or justice of the («6) 
supreme court, or any county judge or surrogate hereafter elected (191)) 
in a county having a population exceeding 12(),()01K i)ractise as an (226) 
attorney or counsellor in any court of record in this state, or act (268) 
as referee. The legislature may impose a similar prohibition upon 
county judges and surrogates in other counties. >so one shall be 
eligible to the office of judge of the court of appeals, justice of 



660 NEW YORK CONSTITUTION ^sej-^^^^yj]; 

the supreme court, or, except in the county of Hamilton, to the 
office of county judge or surrogate, who is not an attorney and 
counsellor of this state.— (i5^^-.94.) 

227 21. Legal publications — The legislature shall provide for the 
(19) speed}" publication of all statutes; and shall regulate the report- 
ing of the decisions of the courts; but all laws andjudicial decis- 
ions shall be free for publication by any person. — (1846-94.) 

228 22. Expiration of terms of office— Justices of the peace and other 
local judicial officer provided for in sections 17 and 18, in office 
when this article takes effect, shall hold their offices until the ex- 
piration of their respective terms. — (1846-94.) 

229 23. Special sesssons — Courts of special sessions shall have such 
(220) jurisdiction of offences of the grade of misdemeanors as may be 

prescribed b}' law. 

ARTICLE V.II.— State debts 

230 1. State credit — The credit of the state shall not in any manner 

(26) be given or loaned to or in aid of any individual, association or 
corporation. 

231 2. State debts — The state may, to meet casual deficits or failures 
in revenues, or for expenses not provided for, contract debts^ but 

(27) such debts direct or contingent, singly or in the aggregate, shall 
not at any time exceed $1,000,000; and the moneys arising from 
the loans creating such debts shall be applied to the purpose for 
which they were obtained, or to repay the debts so contracted, 
and to no other purpose whatever. 

232 3. Emergencies — In addition to the above limited power to 
(26) contract debts, the state may contract debts to repel invasion, 

suppress insurrection, or defend the state in war ; but the money 
arising from the contracting of such debts shall be applied to the 
the purpose for which it was raised, or to repay such debts, and 
to no other purpose whatever. 

233 4. Limits of legislative poicer — Except the debts specified in 
(192) sections 2 and 3 of this article, no debts shall hereafter be con- 
(240) tracted by or on behalf of this state, unless (1) such debt shall be 

authorized by a law, (2) for some single work or object, (3) to be 
distinctly specified therein ; and (4) such law shall impose and 
provide for the collection of a direct annual tax to pay, and suf- 



Sec. 6]2:^6 STATE DEBTS (U'A 

ficient to pay the interest on siic-li debt as it falls due. and 
also to pay and diseliarge the principal of sueh debt (.")) within 
18 years from the time of the contracting tlu^-eof. («) Xo such 
law shall take effect until it shall, at a general election, have 
been submitted to the people, and have received a majority of all 
the votes cast for and against it at such election. On the tinal 
passage of such bill in either house of the legislature, the ques- 
tion shall be taken by ayes and noes, to be duly entered upon the (155) 
journals thereof, and shall be : " Shall this bill pass, and ought 
the same to receive the sanction of people V" 

The legislature may at any time, after the approval of such 2;U 
law by the people, if no debt shall have been contracted in pur- 
suancethere of, repeal the same ; and may at any time, by law, 
forbid the contracting of any further debt or liability under such 
law ; but the tax imposed by such act in proportion to the 
debt and liability which may have been contracted in pursuance 
of such law, shall remain in force and be irrepealable and be 
annually collected, until the proceeds thereof shall have made 
the provision hereinbefore specified to pay and discharge the in- 
terest and principal of such debt and liability. The money 
arising from any loan or stock creating such debt or liability shall 
be applied to the work or object specified in the act authorizing 
such debt or liability, or for the repayment of such debt or 
liability, and for no other purpose whatever. No such law shall 
shall be submitted- to be voted on, within 3 months after its jkis- 
sage, or at any general election when any other law, or any bill, 
or any amendment to the constitution, shall be submitted to be 
voted for or against. 

5. Sinking funds— The sinking funds provided for the pay- '285 
ment of interest and the extinguishment of the principal of the 
debts of the state shall be separately kept and Sfifely invested. 

and neither of them shall be appropriated or used in any manner 
other than for the specific purpose for which it shall have been 
provided. 

6. Limitation— Neither the legislature, canal board, nor any 'J:H> 
person or persons acting in behalf of the state, shall audit, allow 

or pay any claim which, as between citizens of the state, would 
be barred by lapse of time. This provision shall not be con- 



662 NEW YORK CONSTITUTION -3*^ [Alt. VII 

striied to repeal any statute fixing- the time within which claims 
shall be presented or allowed, nor shall it extend to any claim 
dul}'^ presented within the time allowed by law, and prosecuted 
with due diligence from the time of such presentment. But if 
the claimant shall be under legal disability, the claim may be 
presented within 2 years after such disability is removed. 

237 7. Forest pi-eserie — The lands of the state, now owned or here- 
(77) after acquired, constituting the forest preserve as now fixed by 

law, shall be forever kept as wild forest lands. They shall not 
not be leased, sold or exchanged, or be taken by any corporation, 
public or private, nor shall the timber thereon be sold, removed 
or destroyed.— (i<?94.) 

238 8. Canals — The legislature shall not sell, lease or otherwise 
dispose of the Erie canal, the Oswego canal, the Champlain 
canal, the Cayuga and Seneca canal or the Black River canal ;* 
but they shall remain the property of the state and under its 
management forever. The prohibition of lease, sale or other dis- 
position herein contained, shall not apph^ to the canal known as 
the Main and Hamburg street canal, situated in the city of 
Buffalo, and which extends easterly from the westerly line of 
Main street to the westerly line of Hamburg street. All funds 
that may be derived from any lease, sale or other disposition of 
any canal shall be applied to the improvement, superintendence 
or repair of the remaining portion of the canals. — (1846-94.) 

239 9. No tolls — IS'o tolls shall hereafter be imposed on persons or 
property transported on the canals, but all boats navigating the 
canals and the owners and masters therof, shall be subject to 
such laws and regulations as have been or may hereafter be 
enacted concerning the navigation of the canals. The legislature 
shall annually, by equitable taxes, make provision for the 
expenses of the superintendence and repairs of the canals. All 
contracts for work or materials on any canal shall be made with 
the persons who shall offer to do or provide the same at the lowest 
price, with adequate security for their performance. No extra 
compensation shall be made to any contractor ; but if, from any 
unforeseen cause, the terms of any contract shall prove to be 



*See map of the state canals, page 53. 



Art. VIII] 2 4 4 STATE DEBTS ; CORPORATIONS iU>:\ 

unjust and oppressive, the canal board may. upon the applica- 
tion of the contractor, cancel such contract. 

10. Impromment of camds—Tlm canals may he improvt-d in '^40 
such manner as the legislature shall provide hy law. A debt 
maj' be authorized for that purpose in the mode prescribe*! by 
section 4 of this article, or the cost of such improvement may be 
defrayed by the appropriation of funds from the state treasury, (2:«) 
or by equitable annual tax. {ISUJ,.) 

AKTICLE A in— Corporations 

1. How frmf^f?— Corporations may be formed under general laws; 241 
but shall not be created by special act, except for municijval pui- M 71 > 
po.ses, and in cases where, in the judgment of the legislature. tli< 
objects of the corporation cannot be attained under general laws. 

All general laws and special acts passed pui-suant to this section 
may be altered from time to time or repealed. 

2. Debts — Dues from corporations shall be secured by such in- 242 
dividual liability of the corporators and other means as maybe 
prescribed b}' law. 

3. Definition — The term corporations as u.sed in this article 
shall be construed to include all associations and joint-stock com- 
panies having any of the powers or privileges of cori)orations not 
possessed b}' individuals or partnerships. And all corporations 
shall have the right to sue and shall be subject to be sued in all 
courts in like cases as natural persons. 

. 4. Bank clmhters — The legislature shall, by general law. con- 244 . 
firm all charters of savings banks, or institutions for savings, to a 
uniformity of powers, rights and liabilities, and all charters here- 
after granted for such corporations shall be made to conform to 
such general law, and to such amendments as may be made there- 
to. And no such corporation shall have any capital stock, nor 
shall the trustees thereof, or any of them, have any interest what- 
ever, direct or indirect, in the profits of such corporation: and no 
director or trustee of any such bank or institution shall be inter- 
ested in any loan or use of any money or projx-rty of .such bank 
or institution for savings. The legislature shall have no power 
to pass any act granting any special charter for banking purposi*s. (171 ) 
but corporations or associations may be formed for such pur|)oses 
under general laws. 



664 NEW YORK CONSTITUTION ^ 4 5|-^rt.VIII 

245 5. Specie pay)iients — The legislature shall have no power to pass 
any law sanctioning in any manner, directly or indirectly, the sus- 

(51) pension of specie payments, \)y any person, association or corpor- 
ation, issuing bank notes of any description. 

246 6. Begistry of hills — The legislature shall provide by law for 
the registry' of all bills or notes, issued or put in circulation as 
money, and shall require ample security for the redemption of the 
same in specie. 

247 7. StocMolders responsible — The stockholders of every corpora- 
tion and joint-stock association for banking purposes, shall be in 
dividuall}" responsible to the amount of their respective share or 
shares of stock in any such corporation or association, for all its 
debts and liabilities of every kind. 

248 8. InsoUent banks— In case of the insolvencj^ of any bank or 
banking association, the billholders thereof shall be entitled to 
preference in payment, over all other creditors of such bank or 
association. 

249 9. State creiit — Neither the credit nor the mone}' of the state 
shall be given or loaned to or in aid of any association, corpor- 
ation or private undertaking. This section shall not, however, 
prevent the legislature from making such provision for the edu- 

(254) cation and support of the blind, the deaf and dumb, and juven- 
ile delinquents, as to it may seem proper. Nor shall it apply to 
any fund or property now held, or which may hereafter be held, 
by the state for educational purposes. 

250 10. Bestrictions on local indebtedness — No county, city, town or 
village shall hereafter give any money or property, or loan its 

(275) money or credit to or in aid of any individual, association or cor- 
poration, or become directly or indirectly the OAvner of stock in 
or bonds of, an}' association or corporation; nor shall any suck 
count3% city, town or village be allowed to incur any indebted- 
edness except for count3% city, town or village purposes. This 
section shall not prevent such county, city, town or village from 
making such provision for the aid or support of its poor as may 
be authorized by law. No county or city shall be allowed to be- 
come indebted for any purpose or in any manner to an amount 
which, including existing indebtedness, shall exceed 10 per 
centum of the assessed valuation of the real estate of such county 



Sec. 10] 2 5 (' LOCAL INDEBTEDNESS fid.") 

or city subject to taxation, as it appeared hy tlie assc.s.sMi<-iiir.»ll> 
of said county or city on tlic last assessment lor state or county 
taxes prior to the incurring of such indebtedness; and all indel)ted- 
ness in excess of such limitation, except such as may now exist, 
shall be absolutely void, except as herein otherwise provided. No 
county or city whose present indebtedness exceeds 10 per centum 
of the assessed valuation of its real estate subject to taxation, 
shall be allowed to become indebteded in any further amouiil un- 
til such indebtedness shall be reduced within such limit. This 
section shall not be construed to prevent the issuing of certilicates 
of indebtedness or revenue bonds issued in anticipation of the col- 
lection of taxes for amounts actually contained, or to be contained 
in the taxes for the year when such certilicates or revenue ])onds 
are issued and payable out of such taxes. Nor shall this section 
be construed to prevent thejssue of bonds to provide for the suj)- 
ply of water: but the term of the bonds issued to i^rovide the sup- 
ply of water shall not exceed 20 years, and a sinking fund shall 
be created on the issuing- of the said bonds for their redemption, by 
raising annually a sum which will produce an amount ecjual to 
the sum of the principal and interest of said bonds at their ma- 
turity. All certificates of indebtedness or revenue bonds issued in 
anticipation of the collection of taxes, which are not retired with- 
in 5 years after their date of issue, and bonds issued to inovide 
for the supplj^ of water, and any debt hereafter incurred by any 
portion or part of a city, if there shall be any such debt, shall be 
included in ascertaiiiing the power of the city to become other- 
wise indebted. Whenever the boundaries of any city are the same 
as those of a county, or when any city shall include witliin iis 
boundaries more than one county, the powerof any county wholly 
included within each city to become indel)te(l shall cease, but the 
debt of the county heretofore existing shall not for the jjurposes 
of this section be reckoned as a part of the city debt. The 
amount hereafter to be raised by tax for county or city pui- 
poses, in any county containing a city of over 100.000 inliabi- 
tants, or any such city of this state, in addition to providing for 
the principal and interest of existing debt, shall not in the aggre- 
gate exceed in any one year 2 per centum of the assessed valua- 



Gm NEW YORK CONSTITUTION ^ 5 o ["^j^.^ y m 

tion of the real and personal estate of such county or city, to be 
ascertained as prescribed in this section in respect to county or 
city dtU.— (1846-94). 

251 11. State commissions — The legislature shall provide for a state 
board of charities, which shall visit and inspect all institutions, 
whether state, county, municipal, incorporated or not incorpor- 
ated, which are of a charitable, eleemosynar}-, correctional or re- 
formatory character, excepting- only such institutions as are here- 
by made subject to the visitation and inspection of either of the 
commissions hereinafter mentioned, but including all reforma- 
tories except those in which adult males convicted of felony shall 
be confined; a state commission in lunacy, which shall visit and 
inspect all institutions, either public, or private, used for the care 
and treatment of the insane (not including institutions for epilep- 
tics or idiots); a state commission of prisons, which shall visit and 
inspect all institutions used for the detention of sane adults 
charged with or convicted of crime, or detained as witnesses or 
debtors.— (i^S'^.) 

252 12. Appointment — The members of the said board and of the 
said commissions shall be appointed by the governor, by and with 
the advice and consent of the senate ; and any member may be re- 
moved from office by the governor for cause, an opportunity hav- 
ing been given him to be heard in his defence. — {1894.) 

253 13. Existing laics — Existing laws relating to institutions referred 
to in the foregoing sections and to their supervision and inspec- 
tion, in so far as such laws are not inconsistent with the provis- 
ions of the constitution, shall remain in force until amended 
or repealed hx the legislature. The visitation and inspection 
herein provided for, shall not be exclusive of other visitation and 
inspection now authorized by law. — {1894.) 

254 14. Charitable institutions — Nothing in this constitution con- 
tained shall prevent the legislature from making such provision 

(249) for the education and support of the blind, the deaf and dumb, 
and juvenile delinquents, as to it may seem proper; or prevent 
any county, city, town or village from providing for the care, 
support, maintenance and secular education, of inmates of orphan 



Art. IX]' ^« EDUCATION (>(J7 

asj'lums, homes for dependent children or correctional institutions, 
whether under public or private control. Pa3Mnents by counti»'s, 
cities, towns and villages to charitable, eleemosynary, correctional 
and reformatory institutions, wholly or partly under private con- 
trol, for care, support and maintenance, may be authorized, but 
shall not be required by the legislature. No such payments shall 
be made for any inmate of such institutions who is not received 
and retained therein pursuant to rules established by the state 
board of charities. Such rules shall be subject to the control of 
the legislature by general laws. — {I8O4.) 

15. Additional powers — Commissioners of the state board of 1~hi 
charities and commissioners of the state commission in lunacy, 
now holding office, shall be continued in office for the term for 
which they were appointed, respectively, unless the legislature 
shall otherwise provide. The legislature may confer upon the 
commissioners and upon the board mentioned in the foregoing sec- 
tions any additional powers that are not inconsistent with other 
provisions of the constitution. — (1894.) 

ARTICLE IX— Education 

1. M'ee schools — The legislature shall provide for the maintain- t3.")() 
ance and support of a system of free common schools, wherein 

all the children of this state maybe educated. — {1894.) 

2. Regents of the University — The corporation created in the So? 
year 1784, under the name of the regents of the University of 

the State of New- York, is hereby continued under the name of 
The University of the State of New York. It shall be governed, 
and its corporate powers, which may be increased, modified or 
diminished by the legislature, shall be exercised, by not less than 
9 regents.— (i594.) 

3. Application of funds— The capital of the common school 258 
fund, the capital of the literature fund, and the capital of the 
United States deposit fund, shall be respectively preserved in- 
violate. The revenue of the said common school fund shall be 
applied to the support of common schools; the revenue of the 
said literature fund shall be applied to the suppc^rt of academies; 

and the sum of $25,000 of the revenues of the United States de- 



668 NEW YORK CONSTITUTION 2 5 8|-^j.^ X 

posit fund, shall each year be appropriated to and made part of 
the capital of the said common school fund. 

259 4. Sectarian appropi^iations — Neither the state nor any subdivis- 
ion thereof, shall use its property or credit or any public money, 
or authorize or permit either to be used, directly or indirectly, in 
aid or maintenance, other than for examination or inspection, of 
any school or institution of learning whollj^ or in part under the 
control or direction of any religious denomination, or in which 
any denominational tenet or doctorine is taught. — {1894.) 

ARTICLE X— County officers 

260 1. County officers — SheriJBfs, clerks of counties, district attor- 
neys, and registers in counties having registers, shall be chosen by 
the electors of the respective counties, once in every 3 years and 
as often as vacancies shall happen, except in the counties of New 
York and Kings, and in counties whose boundaries are the same 
as those of a city, where such officers shall be chosen by the elec- 
tors once in every 2 or 4 years as the legislature shall direct. 
Sheriffs shall hold no other office and be ineligible for the next 
term after the termination of their offices. They may be required 
by law to renew their security, from time to time; and in default 
of giving such new security, their offices shall be deemed vacant. 
But the county shall never be made responsible for the acts of 

(198) the sheriff. The governor may remove any officer, in this section 
(266) mentioned, within the term for which he shall have been elected; 
giving to such officer a copy of the charges against him, and an 
opportunity of being heard in his defence. — (1846-94.) 

261 2. Election of officers — All county officers, whose election or 
appointment is not provided for by this constitution, shall be 
elected by the electors of the respective counties or appointed by 
the boards of supervisors, or other countj" authorities, as the leg- 
islature shall direct. All city, town and village officers, whose 
election or appointment is not provided for by this constitution, 
shall be elected by the electors of such cities, towns and villages, 
or of some division thereof, " or appointed by such authorities 
thereof as the legislature shall designate for that purpose. All 
other officers, whose election or appointment is not provided for 



Art. XIJ 2 6 COUNTY OFFICERS ; MILITIA 009 

by this constitution, and all oHk-ers whose otticcs may hereafter 
he created hy law, shall be elected by the people, or appointed, 
as the. legislature may direct. 

3. Term of office— W\\{^\\ the duration of any ottice is not pio- IWl 
vided by this constitution, it may be declared l)y law. and if not 

so declared, such office shall be held during the pleasure of tlu- 
authority making the appointment. 

4. Time of eleetion — The time of electing all officers named in -JJiM 
this article shall be prescribed by law\ 

5. Vacancies — The legislature shall provide for filling vacancies 2<U 
in office, and in case of elective officers, no person appointed to 

fill a vacancy shall hold his office by virtue of such appointment 
longer than the commencement of the political year next sue- (211) 
ceeding the first annual election after the happening of the va- 
cancy. 

6. Political year — The political year and legislative term shall *2(>-") 
begin on the 1st day of Januar}-; and the legislature shall, eveiy 
year, assemble on the 1st Wednesday in January. — {IS^C-Uj^.) 

7. Removal — Provision shall be made by law for the removal for 206 
misconduct or malversation in office of all officers, except judi- (216) 
cial, whose powers and duties are not local or legislative and who 
shall be elected at general elections, and also for supplying vacan- 
cies created by such removal. 

8. Offices deemed meant — The legislature may declare the cases 267 
in which any office shall be deemed vacant when no provision is 
made for that purpose in this constitution. 

9. Salaries — No officer whose salary is fixed by the constitution 2()H 
shall receive any additional compensation. Each of the other (."it)) 
state officers named in the constitution shall, during his continu- (("6) 
ance in office, receive a compensation, to be fixed by law. which (KJT) 
shall not be increased or diminished during the term for which h.e 
shall have been elected or appointed; nor shall he receive to his 

use any fees or perquisites of olfice as other comiiensation. 

AKTICLE XI— Militia 

1. How constituted— X\y -AhXQhodxQiX \\\\\\(\ (^'xXv/.vx^-^ between the 269 
ao-es of 18 and 45 years, who are residents of the state, shall con- (H")) 



670 NEW YORK CONSTITUTION ^ 6 9 j-^j^.^ XI 

(41) stitiite the militia, subject however, to such exemptions as are 
now, or may be liereafter created by the laws of the United 
States, or by the legislature of this state. 

270 2. Enlisthient — The legislature ma}' provide for the enlistment 
into the active force of such other persons as may make applica- 
tion to be so enlisted. — {1894.) 

271 3. Organization — The militia shall be organized and divided into 
such land and naval, and active and reserve forces, as the legis- 
lature may deem proper, provided however that there shall be 
maintained at all times a force of not less than 10,000 enlisted 
men, fulh' uniformed, armed, equipped, disciplined and ready 
for active service. And it shall be the duty of the legislature at 
each session to make sufficient appropriation for the maintenance 
thereof.— (i<?£>4.) 

272 4. Staff— The governor shall appoint the chiefs of the several 
(41) staff departments, his aides-de-camp and military secretary, all of 

whom^shall hold office during his pleasure, their commissions to 
expire with the term for which the governor shall have been 
elected; he shall also nominate, and with the consent of the sen- 
ate appoint, all major-generals. — (1846-94.) 
373 0. Other officers — All other commissioned and non-commissioned 
(41) officers shall be chosen or appointed in such manner as the legis- 
lature may deem most conducive to the improvement of the mil- 
itia, provided however that no law shall be passed changing the 
existing mode of election and appointment unless f of the mem- 
bers present in each house shall concur therein. — (1846-94.) 

274 6. Commissioned officers — The commissioned officers shall be 
(41) commissioned by the governor as commander-in-chief. Xo com- 
missioned officer shall be removed from office during the term for 
Avhich he shall have been appointed or elected, unless by the sen- 
ate on the recommendation of the governor, stating the grounds 
on which such removal is recommended, or by the sentence of a 
court-martial, or upon the findings of an examining board or- 
ganized pursuant to law, or for absence without leave for a period 
of six months or more. — (I846-94.) 

ARTICLE XII — Cities and incorporated villages 

275 1. Organization — It shall be the duty of the legislature to pro- 




Art. XII] ^ ^ 8 MILITIA ; CITIES AND VILLAGES fIT 1 

vide for the organization of cities and incorporated villugcs, and 

to restrict their powerof taxation, assessment, ])orr(>wini: njonev. r^'tO) 

contracting debts, and loaning their credit, so as to prevent 

abuses in assessments, and in contracting (h-bt by such imiiiicipal 

corporations. 

2. Mayor's retfh—AW cities are classiJied according to the latest 27<) 
state enumeration, as from time to time made, as follows: The 1st 
class includes all cities having a population of ^oO. ()()(), or more: 
the 2d class, all cities having a population of oO.OOOand less than 
250,000; the 3d class, all other cities. Laws relating to the prop- (279) 
erty, affairs of government of cities, and the several departments 
thereof, are divided into general and special city laws; general city 
laws are those which relate to all the cities of one or more classes; 
special city laws are those w^hich relate to a single city, or to le.ss 
than all the cities of a class. Special city laws shall not be passed 
except in conformity with the provisions of this section. After (171) 
any bill for a special city law, relating to a city, has been passed 
b}' both branches of the legislature, (1) the house in which it 
orignated shall immediately transmit a certified copy thereof to (191) 
the mayor of such city, and (2) within lo days thereafter the 
ma3''or shall return such bill to the house from Avhich it was sent, 
or if the session of the legislature at which such bill was passed 
has terminated^ to tlie governor, with the mayor's certificate 
thereon, stating whether the city has or has not accepted the siime. 

(3) In every citj^'of the first class, the mayor and in every other 277 
city the mayor and the legislative body thereof concurrent!}', shall 
act for such city as to such bill; but the legislature may provide 
for the concurrence of the legislative body in cities of the first 
class. (4) The legislature shall provide for a public notice and 
opportunity for a public hearing concerning any such bill in 
ever}^ city to which it relates, before action thereon. 

(5) Such a bill, if it relates to more than one city, shall be trans- 27S 
mitted to the mayor of each city to wdiich it relates, and shall not 
be deemed accepted unless accepted as herein provided, by every 
such city. (6) Whenever any such bill is accepted as herein pro- 
vided, it shall be subject as are other bills, to the action of the gov- 
ernor. (7) Whenever, during the session at which it was passed, 
any such bill is returned without the accept^mce of the city or 



672 XEAY YORK CONSTITUTION ~ "' ''[Alt. XII 

cities to which it relates, or within such 15 clays is not returned, 
it may nevertheless again be passed by both branches of the leg- 
islature, and it shall then be subject as are other bills, to the ac- 
tion of the governor. (8) In every special city law which has 
been accepted by the city or cities to which it relates, the title 
shall be followed by the words ''accepted by the city", or 
" cities ■', as the case may be; in everj^ such law which is passed 
without such acceptance, by the words ' ' passed without the accept- 
ance of the city ", or '• cities "', as the case may be. — (1894). 

279 3. Elections — All elections of city oliicers, including supervisors 
and judicial offcers of inferior local courts, elected in any city or 
part of a city, and of county officers elected in the counties of 
New York and Kings, and in all counties whose boundaries are the 
same as those of a city, except to fill vacancies, shall be held on 
the Tuesday succeeding the first ^Monday in November in an odd- 

(149) numbered year, and the term of every such officer .shall expire at 
the end of an odd-numbered year. The terms of otfice of all such 
officers, elected before the 1st day of January, 1895, whose succes- 
sors have not then been elected, which under existing laws would 
expire with an even-numbered year, or in an odd-numbered year 
and before the end thereof, are extended to and including the 
last day of December next following the time when such terms 
would otherwise expire; the terms of office of all such offi- 
, cers, which under existing laws would expire in an even-nimiber- 
ed year, and before the end thereof, are abridged so as to expire at 
the end of the preceding year. This section shall not apply to 

(276) any city of the 8d class, or to elections of anj^ judicial officer, ex- 
cept judges and justices of inferior local courts. — {1894). 

ARTICLE XIII--Oatli of office 

280 1. Form prescribed. — Members of the legislature. and all officers 
(60) executive and judicial, except such inferior officers as shall be by 
(82) law exempted shall, before they enter on the duties of their res- 
pective offices, take and subscribe the following oath or affirm- 
ation: " I do solemnly swear (or affirm) that I will support the 
Constitution of the United States, and the Constitution of the 
State of New York, andthat I will faithfully discharge the du- 
ties of the office of . accordino: to the best of mv ab- 



Art. XIII]-:^^ OATH OF OFFICE f>78 

ility;" and all such officers avIio shall have Ix'cn' clioscn at any 
election shall, before they enter on the duties of tiieir respective 
offices, take and subscribe the oath or anirmation above prescribed 
together with the following additions thereto, as part thereof : 

" And I do further solemnly swear (or offinn) that I have not vJM 
directly or indirectly paid, offered or promised to pay. contribut- (181) 
ed, or offered or promised to contribute any money or other valu- 
able thing as a consideration or' re Avard for the giving or with- 
holding a vote at the election at Avhich I was elected to said oftice. 
and hare not made any promise to influence the giving or with- 
holding any such vote," and no other oath, declaraticm or test (114) 
shall be required as a qualification for any otHce of public trust. 

2. Taldng brihes. — Any person holding affice midei- the laws of 282 
this state, who, except in payment of his legal salary, fees or per- (181) 
quisites, shall receive or consent to receive, directly or indirectly 

£i\\\ thing of value or of personal advantage, or the promise there- 
of, for performing or omitting to perform any official act. or with 
the express or implied understanding that his official action or 
omission toact is to be in an}^ degree influenced thereby, shall be 
deemed guilty of a felony. This section shall not affect the val- 
dity of any existing statute in relation to the offence of bribery. 

3. Offering h)-iheH — Any person who shall offer or promise a 283 
bribe to an officer,- if it shall be received, shall be deemetl guilty (131) 
of a felony and liable to punishment, except as herein jirovided. 

Xo person offering a bribe shall, upon any prosecution of the of- 
ficer for receiving such bribe, be privileged from testifying in re- 
lation thereto, and he shall not be liable to civil or criminal (117) 
prosecution therefor, if he shall testify to the giving or ottering of 
of such bribe. Any person who shall offer or promise a bribe, 
if it be rejected by the officer to whom it was tendered, shall be 
deemed guilty of an attempt to bribe, which is hereby declared 
to be a felony. 

4. Trial for bribery — Any person charged with rei-eiving a 284 
bribe, or with offering or promising a bribe, shall be permitted (131) 
to testify in his own behalf in any civil or criminal prosecution 
therefor. 

5. Railroad passes — No public officer or peison elected or ap- 285 



674 NEW YORK CONSTITUTION ^ « ^ [Art. XIII 

pointed to a public office, under the laws of this state, shall 
directly or indirectly ask, demand, accept, receive or consent to 
receive for his own use or beneSt, or for the use or benefit of 
another, any free pass, free transportation, franking privilege or 
disci imination in passenger, telegraph or telephone rates, from 
an}' person or ccrporation, or make use of the same himself or 
in conjunction with another. A person who violates any provi- 
sion of this section, shall b^ deemed guilt}' of a misdemeanor, and 
shall forfeit his office at the suit of the attornej'-general. An}' 
corporation or officer or agent thereof, who shall offer or prom- 
ise to a public officer, or person elected or appointed to a public 
office, any such free pass, free transportation, franking privilege 
or discrimination, shall also be deemed guilty of a misdemeanor 
and liable to punishment, except as herein provided. No person 
or officer or agent of a corporation giving any such free pass, 
free transportation, franking privilege or discrimination hereby 
(117) prohibited, shall be privileged from testifying in relation thereto, 
and he shall not be liable to civil or criminal prosecution therefor 
if he shall testify to the giving of the same. — (1894.) 

286 6. RemoTcd for failure to prosecute — Any district attorney who 
shall fail faithfully to prosecute a person charged with the violation 
in his county of any provision of this article which may come to 
his knowledge, shall be removed from office by the governor, 
after due notice and an opportunity of being heard in his defence. 
The expenses which shall be incurred by any county, in investi- 
gating and prosecuting any charge of bribery or attempting to 
bribe any person holding office under the laws of this state, 
within such county, or of receiving bribes by any such person in 
said county, shall be a charge against the state, and their pay- 
ment by the state shall be provided for by law. 

ARTICLE XTV— Vmeiulments 

287 1. Hoic made — Any amendment or amendments to this constitu- 
(79) tion (1) may be proposed in the senate and assembly; and (2) if 

the same shall be agreed to by a majority of the members elected 
to each of the two houses, such proposed amendment or amend- 
ments shall be entered on their journals, and the yeas and nays 
taken thereon, and (3) referred to the legislature to be chosen at 
the next general election of senators, and (4) shall be published 



^^My 



Art. XIV]~^' AMENDMENTS f> 



I D 



for 8 months previous to the time of inakin-i- such clioicc: and (.">) 
if HI the legislature so next chosen, as aforesjiid, such proposed 
amendment or amendments shall be agreed to by a majority of 
all the members eleeted to eaeh house, then ((J) it shall be the 
duty of the legislature to submit such proposed amendment or 
amendments to the peoi)le for approval in such manner and at 
such times as the legislature shall luvscribe; and (7) if the jieopie ('2:U) 
shall approve and ratify such amendment or amendment by a 
majority of the electors voting thereon, such amendments or 
amendments shall become a part of the constitution from and 
after the 1st day of January next after such approval. — (lSJfi;-'J4). 

2. Constitutionul conventions— \.t the general election to be held 2IS8 
in the year 1916. and every 2()th year thereafter, and also at sucli 
times as the legislature may bylaw provide, the (piestion. "Shall 
there be a convention to revise the constitution and amend the 
same?" shall be decided by the electors of the state; and in case 
a majorit}' of the electors voting thereon shall decide in favor of 
a convention for such purpose, the electors of every senate dis- 
trict of the state, as then organized, shall elect 3 vlelegates at the 
next ensuing general election at which members of the assembly 
shall be chosen, and the electors of the state voting at the sjime 
election shall elect 15 delegates-at-large. The delegates so elected 
sliall convene ai the capitol on the 1st Tuesday of April next ensu- 
ing after their election, and shall continue their session until the 
business of such convention shall have been completed. Every 
delegate shall receive for his services the same compenstition and 
the same mileage as shall then be annually payable to tlu- mem- (14(5) 
bers of the asserabl}'. A majority of the convention shall consti- 
tute a quorum for the transaction of business, and no amendment 
to the constitution shall be submitted for approval to the electors 
as hereinafter provided, unless by the assent of a majority of all 
the delegates elected to the convention, the yeas and nays being (I.m) 
entered on the journal to be kept. The convention shall have the 
power to appoint such officers, employes and assistants as it may 
deem necessary, and fix thefr compensjition. and to provide for the 
printing of its documents, journal and proceedings. The conven- 
tion sliall determine the rules of its own proceedings, choose its 
OAvn officers, and be the judge of the election returns and (lualitica- ( l.>t)) 



676 NEW YORK CONSTITUTION ^ 8 Sj-^^^t XV 

tions of its members. In case of a vacanc}^ by death, resigna- 
tion or other cause, of any district delegate elected to the con- 
vention, such vacancy shall be filled bj' a vote of the remaining 
delegates representing the district in which such vacanc}' occurs. 
If such vacancy occurs in the office of a delegate-at-large, such 
vacancy shall be filled by a vote of the remaining delegates-at- 
large. xlny proposed constitution or constitutional amendment 
which shall have been adopted by such convention, shall be 
submitted to a vote of the electors of the state at the 
time and in the manner provided by such convention, at an elec- 
tion w^hich shall be held not less than 6 weeks after the adjourn- 
ment of such convention. Upon the approval of such constitu- 
tion or constitutional amendments, in the manner provided in the 
last preceding section, such constitution or constitutional amend- 
ment shall go into effect on the 1st day of January next after 
such approval. — {1846-94.) 

289 3. Legislative amendments — Any amendment proposed by a con- 
stitutional convention relating to the same subject as an amend- 
ment proposed by the legislature, coincidently submitted to the 
people for approval at the general election held in the year 1894, 
or at any subsequent election, shall, if approved, be deemed to 
supersede the amendment so proposed by the legislature. — (18 4.) 

ARTICLE XV.— Date of taking effect. 

290 1. The constitution shall be in force from and including the 1st 
day of January, 1895, except as herein otherwise provided. — 

{1894.) 



THE SCh ')0L BULLETIN PUBLICATIONS. 



Books for New York Scliools. 

1. A Manual of School Lair. By C. W. Bardeex. Cloth, Ittiiio, pp. 
300. Manilla, 50 cts.; cloth, $1.00. 

This book has been for twenty years the only recognized text-book on 
the subject. The present edition was wholly re-written in 1896, and brings 
the subiect up to date. It includes the autiior's "Handbook for School 
Trustees ", and adds all the questions in school law given at uniform exam- 
inations from the first to March, 1896, with full answers as jmOlished by the 
State Department corrected to date according to changes in the law. As 
school law is hereafter to be required in all teachers' examinations, 2d and 
3d grades, as well as 1st, this book is absolutely indispensable to every 
teacher, and hence has been put in the Standard Teachers Library. 

2. Laws of New York relating to Common Schools, with Comments and 
Instructions, and a digest of Decisions. Leather, 8vo, pp. 807. $-2.50. 

This is what is known as "The Code of 1888", and is the final authority 
upon all disputed questions. 

3. A Descriptive Geography of the Empire State. By C. \\\ Bardeex. 
Cloth, 8vo, pp. 126, with 25 outline maps on uniform scale, 5 relief maps, and 
125 illustrations. 75 cts. 

The advance orders for this book exceeded any that have before been re- 
ceived for any of our publications. Its most marked characteristic is its ap- 
peal to the eye. Its illustrations are abundant and typical, and its 25 outline 
maps on uniform scale, each making prominent one thing at a time, commend 
themselves at sight. No New York school can afford to be without it. 

4. A Brief History of the Empire State, for Schools and Families. By 
Welland Hendrick, A.M. Cloth, small 4to, pp. 201. 75 cts. 

This book has proved one of our great successes, more than three hun- 
dred schools having officially adopted it. This subject has been made a 
part of the Regents' course of study, with special questions in the examina- 
tions, and the Department of Public Instruction gives it five counts at the 
examinations for State certificates. "Whether used as a history, or as a sup- 
plementary reading-book, it has given universal satisfaction. 

5. Civil Government for Common Schools, prepared as a manual for 
public instruction in the State of New York. To which are appended tlie 
Constitution of the United States, and the Declaration of Independence, 
etc., etc. By Henry C. NoRTHAM. Cloth, 16mo, pp. 220. 75 cts. 

This book no longer needs description, as its use is almost universal. 
The present edition gives all the changes under the new constitution. 

6. A Chart of Civil Government. By Charles T. Pooler. Slieets 12 x 
18. 5 cts. The same folded for the pocket, in cloth covers, 25 cts. 

7. History of Educational Journalism in New York. By C. ^\■. Bar- 
deex, Paper, 8vo, pp. 45. 50 cts. 

C. W. BARDEE:^^, Publisher, Syracuse, N. Y. 



jgcw 



^i^ooar 



JAN 16 1902 




LIBRARY OF CONGRESS 



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027 272 738 7 



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